You can appoint a foreigner/Non-Resident Indian as acting Director in the company provided that one of the Directors must be an Indian. The foreigner can be an executive or non-executive director and must have a DSC and DIN.
Private Limited Companies are one the most popular form of business in India since they require only a certificate of incorporation to start their business operations. Such companies can be owned by a group of people (maximum 200 members) who do not have the right to transfer their shares.
A foreign national or NRI can be appointed as a Director in the company on different positions like Independent Director, Small Shareholders Director, Alternative/Nominee Director or Additional Director. The foreigner needs to fulfil the following conditions and possess required documents to be appointed as a Director in the company.
Mandatory Requirements for a Director
- Digital Signature Certificate (DSC)
- Director Identification Number (DIN)
- Permanent Account Number (PAN) Card (for NRI)
- The person should declare that he is not disqualified from becoming a director.
- He should give his consent to hold the office as a director, and the same must be submitted to the Registrar of Companies within 30 days of the director’s appointment.
Step 1: Obtain a Digital Signature Certificate (DSC)
You can get a DSC within 2-3 working days provided all your documents are in the required format and complete. Foreign nationals/NRI requires following the same registration process as an Indian applicant would do. The applicant needs to submit Identity and Address Proof duly notarised and apostilled by the Governing Authority of the respective foreign country.
Step 2: Applying for Director Identification Number (DIN)
According to the Companies Act, 2013, no person can claim to be a director of the company without a Director Identification Number (DIN). To get a DIN, form DIR-3 is to be filed with The Ministry of Corporate Affairs (MCA) along with a government fee of Rs. 500.
The application is to be signed using the digital signature certificate (DSC) of the applicant and then verified digitally. Upon verification, an allotment number is generated, and the same is mailed to the applicant on the registered e-mail.
The Government can also issue a ReSubmission in case there is any error in the details mentioned in the application. The errors need to be rectified, and the application needs to be submitted again. A maximum of 3 re-submissions is allowed on MCA.
The Directors need to perform an e-KYC every year to continue using their DIN failing which it will be deactivated, and they will not be able to use it for legal purposes. There is no government fee for doing an e-KYC.
What are the documents required for DIN?
In case of a foreign national/ NRI applying for a DSC in India, all the documents need to be notarised by the Public Notary and apostilled by the Governing Authority of the respective country.
- National ID as Identity Proof
- Bank Statement or Utility Bills as Address Proof
- Passport-sized photograph and,
- A copy of Passport
The documents can also be certified by the Company Secretary, Managing Director or CEO of the Indian company in which the foreigner/NRI applicant is an existing director.
Also, if the applicant has an Indian Origin Card or Overseas Citizen of India Card, then the attestation of documents can also be done by Gazetted Officer/Public Notary in India.
Step 3: Permanent Account Number for NRI
According to The Indian Income Tax Act, it is mandatory for all the directors of a company to have a valid PAN Card in India even if the director happens to be a Non-Resident India.
Also, if the financial transactions of the company are above Rs. 2,50,000 in a financial year, then it is compulsory to have an Indian PAN Card. In case, the directors of the company do not have a PAN Card then they are liable for a penalty of Rs. 10,000 for the default.
Initially, non-resident applicants can submit a clarification letter stating to initiate the PAN Card Registration Process later. However; in the case of foreign applicants PAN Card is replaced by Passport, i.e. Passport is mandatory for foreign applicants who wish to be directors in Indian Company.
Step 4: Appointing a Director
As per the Company Law, every director other than the first director of the company shall be appointed in a General Meeting. A maximum of 15 directors can be appointed in a private limited company, however; if the company wishes to increase the number, a special resolution needs to be passed.
More on: How to Add a Director
A practising Company Secretary (CS) or Charted Accountant (CA) will file the DIR-12 form once you obtain a Director Identification Number (DIN). Following documents are also required along with the form –
- Consent to act as the Director of the company (DIR-2)
- An affidavit stating that all the information provided is genuine (INC-9)
- Letter of appointment form of the concerned company
- The resolution passed by the company.
All the forms are to be filed on the Ministry of Corporate Affairs online portal and signed digitally through a Digital Signature Certificate (of the CA/CS). Once the application is submitted successfully, the concerned authorities verify the details which can take up to 3-4 working days.
The cost of DIR-12 form for appointment of directors depends upon the amount of Authorised Capital of the respective company. For example –
If a company has an Authorised Capital of say Rs. 1 Lakh, then the fee of filling the form for addition of directors will be Rs. 300.
Types of Directors
There are different types of directors in a private limited company. A foreign director is eligible to be appointed as one of the following-
An independent director is not the promoter of the company, does not have any monetary relationship with the company or any of its holding, associate or subsidiary company. None of his relative can be a key managerial personnel or any employee in the company.
The foreigner/NRI applicant possesses skills, expertise, experience and knowledge in fields like management, law, finance, research, corporate or operations related to a company.
For appointing a foreigner/NRI as a managing or whole-time director, he/she should be staying in India for at least 1 year before their appointment. Also, applicants should have a legal Indian Employment Visa to work in the country.
The person must not be below 21 years of age and above 70 years of age, should not be insolvent or at any time suspended payment to the creditors or convicted for more than a period of 6 months. The appointment is approved by the Board of Directors by passing a resolution.
Making Payment on MCA
The Ministry of Corporate Affairs accept all sorts of debit, credit and net banking payments, however; once a payment is made it cannot be refunded.
In some cases, you can raise a ticket to claim a refund on the payment made if some technical issues are encountered while making the payment. Once a payment is made successfully you will receive a confirmation receipt regarding the same.
- Foreigner/NRI Director in an Indian Company can hold and maintain a foreign currency account with a bank which is outside India and receive the whole salary or send money payable to the person for the concerned services.
- The Foreign/NRI Director needs to attend at least board meeting every year either physically/video conferencing.
- The appointment and resignation of the directors have to be updated to the Registrar of Companies within 30 days of such event.
- The Board of Directors for a Private Limited Company must have at least one director who is both an Indian Citizen and an Indian Resident.
- The salary or remittances provided to a foreigner/NRI Director in an Indian Private Limited Company is liable for tax deduction under the Income Tax Act.
- The person is eligible for remuneration, travel expenses, commission and sitting fees from the company.
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