RBI Rationalized Reporting Process for Foreign Direct Investment (FDI)

iSPIRT is pursuing the Stay-in-India Checklist 2.0 with DPIIT, Government of India targeted to bring Ease of Doing Business for start-ups.

Our efforts gained momentum with DPIIT’s Regulatory Roundtables since August 2022. RBI has further eased the reporting of FDI on the FIRMS portal.  The item was on the list of issues that were taken up with RBI through DPIIT.

The new announcement called “Foreign Investment in India – Rationalisation of reporting” has been announced vide circular no. RBI/2022-23/160 A.P. (DIR Series) Circular No. 22 Dated January 04, 2023. Please visit the RBI site on link here.

The announcement is expected to further ease the reporting of the foreign direct investment received.

Details of the Reform Measure

In its effort to tout India as an attractive investment destination, the Reserve Bank of India (RBI) has released the RBI/2022-23/160 A.P. (DIR Series) Circular No. 22 on 4 January 2023, which brings about certain reforms in the reporting process in the Single Master Form (SMF) on the FIRMS portal. The SMF is a form which integrates the reporting structure of various types of foreign investment in India. It has implemented the following changes with respect to reporting in the SMF on the FIRMS portal:

  • The forms submitted on the portal will now be auto-acknowledged with a time stamp and an auto-generated email will be sent to the applicant. The AD banks will have to verify the same within 5 (five) working days based on the documents uploaded.
  • The system would automatically identify a delay in reporting if any.
  • For forms filed with a delay of less than or equal to 3 (three) years, the AD bank will approve the same, subject to the payment of LSF.
  • The LSF will be computed by the system, and an e-mail will be sent to the applicant and the concerned Regional Office (RO) of the RBI, specifying the amount and the timeline within which the LSF is to be paid to the concerned RO.
  • Once the LSF amount is realised, the concerned RO will update the status in the FIRMS portal, and the updated status will be communicated to the applicant through a system-generated e-mail, which can also be viewed in the FIRMS portal.
  • The AD bank will approve the forms filed with a delay greater than three years, subject to the compounding of the contravention. The applicant may thereafter approach the RBI with their application for compounding.
  • The remarks of the AD Bank for rejection of forms, if any, will be communicated to the applicant through a system-generated e-mail and the same can also be viewed in the FIRMS portal.

The resulting effects of the RBI circular

1.   Auto acknowledgement of SMF

While the rationalisation of the reporting process is a welcome move, and the auto acknowledgement of forms will bring comfort to the applicants after filing the form, we are receiving mixed reactions from stakeholders with regard to the verification of the forms submitted by the applicants within the 5 (five) working day window. Given that there are no overarching guidelines on the format of documents required for filing Form FC-GPR and Form FC-TRS, and the format differs from bank to bank, it may be helpful if banks were to consider offering pre-vetting services in relation to reporting for cross-border transactions.

The likely result of an AD bank not approving the form within 5 days will be auto-approval of the form.

The circular is silent on what happens in the event an authorised dealer (Bank) isn’t satisfied with the details. It seems, in such an event, what could have been approved with a few follow-up queries will have to be rejected within the 5-day window, if the queries remain unanswered.

Separately, we also believe that a 5-day window is very short given the complexity that can arise with some filings. Banks and their regulatory teams also usually work only till 5:00 PM (and cannot, in any case, be expected to work 24×7), so if a form is submitted close to or after 5:00 PM, an applicant may already have lost close to a day.

2.   Online calculation of late submission fee.

Auto-identification of a delay in reporting and calculation of the late submission fee (LSF) by the system will likely be greatly appreciated by stakeholders. Prior to this reform, if an applicant received an email from the RBI regarding the LSF, the applicant would have to draw a demand draft in favour of the RBI, which would have to be acknowledged by the RBI through email. While the process was efficient and hasn’t changed post the amendment, there have been multiple instances of applicants not having a record of the acknowledgement with them after a few years, either due to: (a) IT policies of the organisation which delete older emails; or (b) due to a change in employees. Now that the concerned RO of the RBI will update the status on the FIRM’s portal (along with the standard email process), the amount will be reconciled and the LSF can be viewed on the portal as well.


This blog is to cover the new announcement by the regulator and should not be construed as an advice, in any manner on the subject matter.

The Blog is Authored by Tanuvi Thakur of iSPIRT and Sanjay Khan, Khaitan & Co.

38% of India’s Unicorns Are Not “Indian”

India currently has 90 unicorns – startup companies that are valued at over $1b – and will likely soon have 100 unicorns, becoming the third such country after the USA and China. Since January 2016 when the “Startup India” program was launched, the startup ecosystem of India including infrastructure for startups, be it incubators, mentorship, funding, corporate initiatives, media coverage, or even patent filing, has improved substantially making life easier for entrepreneurs. 

However, it is still not as smooth a ride for the Indian start-ups as it is for startups in the advanced economies of say, the USA, Singapore, and China. Our “ease of doing business” is yet to be on par with the developed world, especially given the high taxation, onerous compliance requirements, inadequate and cumbersome legal protection of IP, as well as time-consuming and expensive processes to access capital and secure exits. It isn’t a surprise therefore that many companies are shifting their primary legal location to foreign jurisdictions like the USA, and Singapore. 

How do the numbers stand?

As per a study by Venture Intelligence, of the presently known 90 “Indian” unicorns), 56 are based in India, 25 in the USA, 8 in Singapore, and 1 in the Netherlands spanning sectors from e-Commerce to fintech to gaming and more. In other words,  38% of “Indian” unicorns are not quite Indian as they are domiciled outside of India. Moreover, these 34 unicorns have raised approximately $30B ie, this large money could have been but hasn’t been invested into an India domiciled entity. 

Sector Wise break-up of the Unicorns 

Source: Venture Intelligence

Chart: Sector-wise domicile of unicorns as on 31st March 2022.

The reasons for incorporating in the USA are different from incorporating in say,  Singapore. SaaS founders find it easier to reach out to the large market for SaaS “Software as a Service” based offerings in the USA by incorporating there. Companies incorporated in Singapore for high “ease of doing business”, low taxation, quality infrastructure, and quality of life while remaining close to India.  

Out of 12 Indian unicorns in the SaaS category, all except Zoho and Darwinbox are based in the USA. SaaS offerings are expected to be a $1 trillion opportunity and India will lose wealth creation, tax revenues, listing, and related income, by not having these companies domiciled in India. 

Of the three unicorns in a frontier technology area like Artificial Intelligence, namely – Glance, Fractal, and Mindtickle, one is registered in Singapore while the other two are in the USA. Of the 3 unicorns in Gaming, Mobile Premier League and  Dream 11 are based in Singapore and New Jersey respectively while Games 24×7 is registered in India. 

Flipkart, India’s greatest startup success story and the poster boy for Indian e-commerce, which was acquired by Walmart at a valuation of over $20B, was domiciled in Singapore.  That set the trend of e-commerce companies having their HQs in the island country. There are many Singapore shell companies set up by VC funds to become holding companies for Indian subsidiaries. Singapore is today the hottest destination for the registration of Indian e-commerce players.

Even more worrying than this trend of registering the parent company outside India is the migration of startup founders to UAE and Singapore.  Lower taxes, easier access to capital, government support, simple compliance, and better quality of life while being just a short flight away from India make the UAE and Singapore rather attractive to founders. 

Whichever country our startups chose to register or our founders chose to migrate to, the ultimate loser is India with intellectual property ownership and funds being vested in non-Indian jurisdictions. 

Stay in India Mission

In order to retain the economic value added by the start-up ecosystem, it is important that India urgently puts in place policies that ensure that founders and startups ‘Stay-in-India”.  This will require the coming together of various ministries, particularly DPIIT/Min of Commerce, Ministry of Finance, Ministry of Electronics and Information Technology, and regulators like the Reserve Bank of India and Securities and Exchange Board of India to address the Stay-in-India Checklist. 

Stay-in-India is an evolving checklist of issues that need to be solved to contain the exodus of startups from India. These issues fall under four categories: a) Ease of doing business and making it easy to raise funds; b) harmonization of coding of digital economy c) Reducing overall tax anomalies and d) Increased DTA and foreign markets access. 

The issues are comprehensively listed in the Stay-in-India checklist

As an example, let’s consider the anomalies in the taxation of dividends. Dividend received from overseas subsidiaries, that has been already taxed, is taxed once again in India as income in the hands of the company. Also, while the rate of tax on such dividends for certain companies is 15% (as against 30%), the same exemption is not provided to limited-liability partnerships and individuals. It amounts to double taxation of income and discourages a model where overseas subsidiaries of Indian startups can pay dividends at lower tax rates to Indian shareholders. Removal of this dividend tax will directly encourage start-ups to remain domiciled in India and receive dividend income from subsidiaries abroad. 

Similarly, there are regulatory frictions e.g. TDS on the sale of software products which reduces the working capital in hands of Software product companies, or the need for filling the Softex form (which was relevant in the early days of IT services exports), and which is now redundant as GSTN Invoices already have the required and sufficient data. All that is required is for different departments of the Govt and regulators to connect digitally and share information. The unfavourable tax regime for IPR protection, such as subjection to minimum alternate tax, IPRs being subject to income tax, and not capital gains even when they are held for more than a year is another big irritant. Technology-heavy startups, therefore, tend to relocate to jurisdictions like Singapore and the USA that have a smoother and lower-cost approach. Founders relocating to overseas jurisdictions are typically seen around the time of M&A. One of the reasons relates to taxation: typically, a portion of the financial proceeds arising from an M&A transaction is held in escrow and released to the founders after some time and/or completion of certain contractual obligations. The escrow payments are treated as income by the Indian tax authorities rather than capital gains as other jurisdictions do – this needs resolution.

India is emerging as a global startup hub, with the support of the Govt, with our startups attracting capital and talent while being at the forefront of innovation, jobs, wealth, and intellectual property creation. Brand India is enhanced globally by the success of Indian startups.  With more support from the Government by way of removal of regulatory friction and by providing incentives – fiscal and regulatory –  the ecosystem required to create, enable and grow Indian startups will dramatically accelerate. 

The Ease of Doing Business must be tackled in mission mode with the Stay-in-India Mission (SIIM) being an integral part of India is to secure its rightful place around the global innovation table. 

The blog post is co-authored by our volunteers Sanjay Anandram and Amit Agrahari. You can reach out to Amit at [email protected]

Disclaimer: The article depends upon various pubic data sources apart from credible data sources that are relevant at the current date and time. Readers may like to read this accordingly. 

Data Sources Courtesy: 1. Venture Intelligence. 2. Invest India

Company Incorporation further Simplified by MCA

Ease of doing business – Some new additions in Company Incorporation rules

Ministry of corporate affairs (MCA) has announced the Companies (Incorporation) Third Amendment Rules,2016. The set of announcements made will replace or change the the Companies (Incorporation) Rules, 2014.

There are about 12 changes announced in the notification published at MCA website here. However, the simplifying impact is well associated with few clauses with reasonable clarity.

Mr. Sanjay Khan Nagra, iSPIRT volunteer explains the new announcements in below the embedded video.

Rule 13(2) of Companies (Incorporation) Rules, 2014 following explanation has been added

2014 notification: Following provisions existed

i) The memorandum and articles of association of the company shall be signed by each subscriber to the memorandum, who shall add his name, address, description and occupation, if any, in the presence of at least one witness.

ii) Where a subscriber to the memorandum is illiterate, he shall affix his thumb impression or mark which shall be described as such by the person, writing for him, who shall place the name of the subscriber against or below the mark and authenticate it by his own signature

2016 notification: Now the type written or printed particulars of all the subscriber and witnesses shall be allowed.

Rule 16(1)(m) – of Companies (Incorporation) Rules, 2014 following explanation has been added

2014 notification : Every subscriber to the memorandum was required to submit and file Proof of Identity with the jurisdictional Registrar of companies.

2016 notification: If the subscriber is holding a valid Director Identification Number (DIN), and the same  have been updated as on the date of application and the declaration on this effect is given in the application, the proof of identity and residence need not be attached.

For other changes in the rules we suggest you refer to the Notification given at MCA website. Access this link here.