Documentation & Details while Incorporating a Company with Foreign Stakeholders or Foreign Company as Holding for Indian Company

In the recent years, the Government of India has liberalised its policies for the Foreign Investors whereby they can come to India and invest in various sectors. Presently every sector except a few like railway, defence, agriculture, real estate etc are allowed by the Government, where Foreign Direct Investment can be made through automatic/ approval routes. However, by making FDI, a Person Resident Outside India can only become the shareholder, but the day to days affairs of the company shall lie with the Directors only. So while making investment the investor would like to be part of the Board of Directors of the company. Hence, the Ministry of Corporate Affairs have enacted the various provisions under the Companies Act, 213 through which Persons Resident Outside India can be allocated Directorship in Indian Companies by complying with the Companies Act, 2013 (hereinafter referred as "The Act") read along with the Companies (Appointment and Qualifications of Directors) Rules, 2014 (hereinafter referred as "The Rules") A Person Resident outside India can become an executive or a non-executive/independent director of Indian companies whether private, public, listed, or unlisted.

Since, At time of incorporation of the company in India or at time of appointment as Director in India Company, every person whether he is an Indian Resident or a Person Resident Outside India, requires to have a DIN for which the applicant directors/ proposed directors are required to provide a set of documents which shall be served as the proofs for obtaining DIN. However the documents requirements for such Persons Resident outside India is different from the point of view of their status of Residency in India/ outside India.

And here we shall be discussing the documents requirements by the Persons Resident Outside India for obtaining DIN. For this it is required to understand who are the person Resident Outside India:

1. Foreign Nationals: Foreign Nationals are the person who are not the citizens of India and having Nationality of Country other than India.

2. Person of Indian Origin / Overseas Citizens of India: A Person of Indian Origin (PIO) means a foreign citizen (except a national of Pakistan, Afghanistan, Bangladesh, China, Iran, Bhutan, Sri Lanka and Nepal) who at any time held an Indian passport Or who or either of their parents/ grand parents/ great grand parents was born and permanently resident in India as defined in Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the aforesaid countries ( as referred above);

3. Non Resident Indian: Non Resident Indian means a persons who had been in India for less than 182 days in Previous Financial Year 

Documents required for the application of DIN by Foreign National (Without Visiting India)

1. Identity Proof: Copy of Passport of the Foreign National is Mandatory as an Identity Proof. Further such Passport should be duly notarised and apostille from the Indian embassy of the country where the Foreign National Resides

2. Address Proof: Copy of the driving license, passport, or utility bills like telephone bill, electricity bill. Bank statement for the last 6 months can also be taken as proof of Address of the Foreign Applicant for obtaining of DIN. Further all these address proofs should be duly notarised and apostille from the Indian embassy of the country where the Foreign National Resides

3. Passport size photographs of the Applicant

4. In case the Identity and Address Proofs are in a language other than Hindi/English, the proofs are mandatorily required to be translated to English by a certified translator or a notary public, under his seal, of home country where the Foreign National resides

5. Valid E mail Id and the active Mobile No. of the Foreign Country where the Foreign National Resides

6. A Declaration stating that the applicant is not disqualified from becoming a director has to be furnished along with the DIN. (PAN)

7. A valid Digital Signature issued by Certifying Agency. Further, the above documents as mentioned for obtaining of DIN can be used for obtaining the Digital Signatures also.

8. Passport of a witness in Foreign Nationals Home Country Duly Notarised & Apostille

Case, where the apostille of documents not required

In case the applicant is a Foreign national, then all the above stated documents required to be apostille from the India Embassy of the Country where the Foreign National applicant resides i.e,. Indian Embassy of Home Country of the applicant.

But in case, such Foreign National is visiting India on a BUSINESS VISA for starting / incorporating a company, then no documents is required to be apostille and his documents can be attested by the Professionals in India i.e. CA/ CS/ CWA or from the Indian Notary and can be used for obtaining of the DIN.

Documents required for the application of DIN by a Citizen of another country who is a Person of India Origin (POI) and holding an Overseas Citizenship of India (OCI) Card

In case a person who is a person of Indian Origin but now have got the citizenship of Foreign Country and he is holding the OCI Card issued by the Government of India, intends to be director in an Indian Company or start/ incorporate a new company in India, he need to have following documents for obtaining of Director Identification Number.

1. Overseas Citizenship Card of the applicant duly apostille from the Indian Embassy of the country where the applicant POI resides

2. And all other documents same as that of Foreign National duly apostille from the Indian Embassy of the country where the applicant POI resides

Case, where the apostille of documents not required

In case the applicant is a person of Indian Origin and is holding an OCI Card, and he is on his visit to India for any reason (i.e. not mandatory that he should be on Business Visa), then no documents is required to be apostille from the Indian Embassy of the Foreign Country where POI resides and all his documents can be attested by the any Professionals in India i.e. CA/ CS/ CWA or from the Indian Notary and can be used for obtaining of the DIN

Documents required for the application of DIN by a Non-Resident Indians

A person who had been in India for less than 182 days in Previous Financial Year is a Non Resident Indian (NRI). Such NRI may be outside India for any reason like Education, Visit, Employment etc. So, in such cases, if such NRI intends to be director in an Indian Company or start/ incorporate a new company in India, he need to have following documents for obtaining of Director Identification Number.

1. Pan Card of the NRI shall be mandatorily required as an Identity Proof duly apostille from the Indian Embassy of the country where the applicant NRI resides presently

2. Permanent Resident Proof which shall be an Indian Address Proof like Aadhar card, Driving License, Bank Statement, or any utility Bill

3. Present Address Proof of the country where the NRI presently resides which can be Driving License, Bank Statement, or any utility Bill

And all other documents same as that of Foreign National duly apostille from the Indian Embassy of the country where the applicant NRI resides presently.

Case, where the apostille of documents not required

In case the applicant is aNon Resident Indian who has been outside India for any reason for more than 182 days in the Previous Financial Years, then no documents is required to be apostille from the Indian Embassy of the Foreign Country where such NRI resides, in case such NRI is on his Indian Visit at time of incorporation of Company or at time of his appointment as Director in the Indian Company and all his documents can be attested by the any Professionals in India i.e. CA/ CS/ CWA or from the Indian Notary and can be used for obtaining of the DIN.

Information /Documents required from Foreign Company (Translated to English, if in any other language) 

1. Apostiled Copy of resolution of foreign Company mentioning the name of authorized representative, no. of subscription of shares.

2. Apostiled Copy of Charter of Foreign Company (MOA, AOA, Certificate of Incorporation or any other equivalent document as per the country of Incorporation).

3. Apostilled Copy of ID Proof of authorised representative, if such person is non – resident of India

4. Details of one Indian Resident Director

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