10 Things Foreign Founders Must Know Before Setting Up a Company in India (2026)

By CA Rohit Lohade, KRPR & Associates  ·  Updated May 2026  ·  12 min read

Table of Contents

1. The setup sequence matters more than anything else
2. Choose the right legal structure from day one
3. Understand your FDI sector and route
4. Apostille is the step that takes the longest — start it first
5. The resident director requirement is non-negotiable
6. India payroll is a compliance system, not just a salary process
7. FEMA governs every rupee that crosses the border
8. Transfer pricing applies from your very first intercompany invoice
9. Define IP ownership before you hire your first employee
10. The right advisor saves you years of problems
11. Frequently asked questions

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1. The Setup Sequence Matters More Than Anything Else

Most delays when setting up a company in India are not caused by Indian bureaucracy. They are caused by doing steps in the wrong order. Getting the sequence right means your incorporation can complete in 7–12 working days. Getting it wrong means 6–8 weeks of avoidable delays.

The correct sequence:

Step	Action	Time required
1	Start apostille of parent company documents	1–3 weeks (do this first)
2	Obtain DSCs (Digital Signature Certificates) for all directors	3–5 working days
3	Reserve company name on MCA SPICe+ portal	2–4 working days
4	File SPICe+ incorporation form	7–10 working days
5	Open corporate bank account	10–15 working days
6	Remit share capital + obtain FIRC	2–5 working days
7	File FC-GPR with RBI	Within 30 days of allotment
8	File INC-20A (commencement of business)	Within 180 days of incorporation

Common sequencing mistakes that cause weeks of delay:

• Trying to open a bank account before the company is incorporated
• Hiring employees or signing contracts before the company legally exists
• Assuming US or UK documents will be accepted without notarisation and apostille
• Sending uninapostilled documents and having them rejected at MCA
• Missing the FC-GPR 30-day deadline after share allotment — this is the single most penalised compliance error

→ Full step-by-step guide to setting up a subsidiary in India

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2. Choose the Right Legal Structure From Day One

For the vast majority of foreign companies, the answer is a Private Limited Company (Pvt Ltd) — but understanding why matters, because choosing the wrong structure creates problems that are expensive to fix later.

Structure	Best for	Key limitation
Private Limited Company	Technology centres, back offices, manufacturing, trading, services	Requires 2 directors, 1 must be resident in India
Branch Office	Import/export representation for an existing foreign company	Higher tax rate (40%), RBI approval required, cannot conduct all commercial activities
Liaison Office	Market research only	Cannot generate any revenue at all
LLP	Professional partnerships	FDI requires government approval (not automatic route) — less suitable for foreign companies
Project Office	Executing a single specific project contract	Temporary — limited to duration of contract

The Private Limited Company gives you:

• Limited liability — your parent company's assets are protected from Indian liabilities
• 100% foreign ownership in most sectors under the automatic FDI route
• Full commercial freedom — hire, invoice, contract, and operate
• The lowest corporate tax rate (22–25%) of any foreign-owned structure
• Clean IP ownership chain — employees assign IP to the subsidiary, which assigns to the parent

→ Subsidiary vs Branch Office vs Liaison Office — full comparison

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3. Understand Your FDI Sector and Route Before You File

Not all sectors allow 100% foreign ownership. Before you begin incorporation, confirm that your business activity falls under the Automatic Route — otherwise you need government approval first, which adds weeks or months.

Sector	FDI route	Foreign ownership cap
IT, software, back-office services	Automatic	100%
Manufacturing	Automatic	100%
E-commerce (marketplace model)	Automatic	100%
Professional services	Automatic	100%
Insurance	Automatic up to 74%	74% automatic, beyond requires approval
Defence	Automatic up to 74%	Beyond 74% requires government approval
Broadcast / print media	Government route	26–49% depending on type
Agriculture, real estate	Restricted / prohibited	Not permitted

You also need to use the correct NIC (National Industrial Classification) code when filing incorporation documents. If the NIC code doesn't match your actual business activity, it can cause problems during GST registration, FEMA filings, and tax assessments. We verify the correct code as part of every incorporation we manage.

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4. Apostille Is the Step That Takes the Longest — Start It First

This is the most overlooked cause of delay. Before any incorporation documents can be filed in India, your foreign parent company documents must be notarised and apostilled in your home country.

Why this takes time:

Country	Apostille authority	Typical processing time
United Kingdom	FCDO (Foreign, Commonwealth & Development Office) — but a UK solicitor must certify documents first	2–5 working days (standard) — budget 1–2 weeks total
United States	Secretary of State (varies by state)	5–15 working days depending on state
Germany	Regional Oberlandesgericht	1–3 weeks
Netherlands	Local notary + district court	1–2 weeks
Singapore	Singapore Academy of Law	3–5 working days
Australia	State and Territory government offices	1–2 weeks

Documents that need apostilling:

• Certificate of Incorporation of the foreign parent company
• Memorandum and Articles of Association (or equivalent)
• Board Resolution authorising the Indian subsidiary
• Latest audited financials or certificate of good standing
• Proof of registered address
• Passports and address proof of foreign directors

Start the apostille process the day you decide to set up in India. The Indian filing itself is fast. The foreign document process is what determines your actual go-live date.

→ Full documents checklist with country-specific apostille guidance

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5. The Resident Director Requirement Is Non-Negotiable

Under Section 149(3) of the Companies Act, 2013, every Indian company must have at least one director who stays in India for at least 182 days during the financial year. For a newly incorporated company, the requirement applies proportionately from the date of incorporation.

This surprises many foreign founders. You cannot simply appoint two foreign directors and proceed. You need a qualifying India-resident director from day one.

Your options:

Option	Suitable when	Risk/consideration
Appoint a co-founder or senior employee who lives in India	You already have India-based leadership	Gives the person full director powers — ensure your governance documents limit authority appropriately
Appoint a nominee resident director	No India-based team initially — lean entity, trading subsidiary, or early-stage setup	Governance documents must clearly limit the nominee's authority (no commercial signing power, no bank access)

When using a nominee director, best practice is to:

• Define authority limits in the Board Resolution and Articles of Association
• Obtain an undated resignation letter held by the foreign parent — allows removal at any time
• Ensure the nominee has NO bank signing authority
• Ensure the nominee cannot execute any commercial contract

→ Resident Director Services — how KRPR provides this

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6. India Payroll Is a Compliance System, Not Just a Salary Process

This is the biggest operational surprise for foreign founders. In India, payroll = compliance. The moment you hire your first employee, you automatically enter a set of statutory systems — each with its own registrations, monthly filings, and deadlines.

Statutory system	What it is	Employer obligation
PF (Provident Fund)	Retirement savings — mandatory for employees earning under ₹15,000/month basic; optional above	12% of basic salary contributed by employer + 12% deducted from employee
ESIC	Employee State Insurance — health and accident cover	3.25% employer contribution for employees earning under ₹21,000/month
Professional Tax	State-level tax on employment	Varies by state — typically ₹200/month per employee in Maharashtra
TDS on salary	Tax deducted at source on salary	Monthly deduction based on employee's projected annual tax liability
Shops & Establishment Act	State-specific registration covering working hours, leave, and conditions	Register within 30 days of first hire
Gratuity	Statutory lump-sum paid on resignation/retirement after 5 years	15 days' salary per year of service — often requires actuarial valuation

Your global HR tools will not handle this.

Platforms like Rippling, Gusto, Deel, Oyster, and Remote do not support:

• Form 24Q (quarterly TDS return on salaries)
• PF ECR (Electronic Challan cum Return) uploads
• ESIC returns on the ESIC portal
• Professional tax calculations by state
• Leave encashment rules under the Factories Act / Shops Act
• Full & Final settlement calculations
• Reimbursements exempt under Section 10 of the Income Tax Act

Using a global platform without India-specific payroll support leads to incorrect payslips, statutory notices, mismatched filings, and unhappy employees. Plan payroll infrastructure before you hire — not after.

→ Payroll & HR for foreign companies in India

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7. FEMA Governs Every Rupee That Crosses the Border

The Foreign Exchange Management Act (FEMA) is the law that governs all cross-border money flows involving India. Every inbound and outbound transaction your Indian subsidiary makes has a FEMA dimension — and violations carry significant penalties.

What FEMA controls:

• Inbound capital — how share capital and loans come in from the foreign parent
• Outbound payments — dividends, royalties, management fees, technical service fees going to the parent
• RBI reporting obligations — FC-GPR (share issuance), FC-TRS (share transfers), APR (Annual Performance Report), FLA return (Foreign Liabilities & Assets)
• Intercompany transactions — how services are invoiced between the subsidiary and the parent
• Loan structures — External Commercial Borrowings (ECB) have their own regulations

FEMA filing	When required	Deadline
FC-GPR	After initial share capital is received and allotted	Within 30 days of allotment
FC-TRS	When shares in the Indian company are transferred	Within 60 days of transfer
FLA Return	Indian companies that have received foreign investment or made overseas investment and have outstanding foreign assets or liabilities	15 July annually
Annual Performance Report (APR)	Overseas direct investment made by an Indian entity, where applicable	Generally 31 December annually
Form 15CA / 15CB	Before every outbound remittance (dividends, fees, royalties)	Before remitting

A foreign-owned Indian company generally files the FLA Return annually while it has outstanding foreign assets or liabilities. The Annual Performance Report relates to overseas investment made by an Indian entity and does not arise merely because the Indian company has received FDI.

→ FEMA & FDI compliance — our specialist desk

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8. Transfer Pricing Applies From Your Very First Intercompany Invoice

If your Indian subsidiary provides services to the foreign parent — software development, back-office work, R&D, customer support — those services must be invoiced at arm's length prices. This is transfer pricing, and it applies to every foreign-owned Indian entity from day one.

What counts as an intercompany transaction subject to transfer pricing:

• Software development or IT services recharged to the parent
• Back-office or BPO services
• Management fees paid to or received from the parent
• Software licences or IP licences between the entities
• Shared service allocations (HR, finance, legal)
• Intercompany loans
• Sale or purchase of goods between related parties

Every international transaction between associated enterprises must be reported in Form 3CEB and supported as being at arm's length. Rule 10D provides limited relief from maintaining the prescribed documentation set where the aggregate value does not exceed ₹1 crore, but it does not remove the arm's-length requirement or Form 3CEB reporting.

Master File and Country-by-Country Report requirements apply separately where the relevant statutory thresholds are met.

→ Transfer pricing advisory — how we structure and document it

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9. Define IP Ownership Before You Hire Your First Employee

Under Indian copyright law, IP created by an employee belongs to their employer. If your India team is employed by the Indian subsidiary, the subsidiary owns the IP — not the foreign parent. Without the right agreements in place, your parent company may not legally own the code, designs, or research your India team produces.

What you need before hiring:

Document	What it does
IP Assignment Agreement (subsidiary → parent)	Assigns all IP created by the subsidiary to the foreign parent. Must be drafted under Indian law and properly executed.
Employee Invention Assignment in employment contract	Each employee assigns their IP to the subsidiary as part of the employment terms
Moral rights waiver	Indian copyright law gives individual authors non-assignable moral rights. These must be waived in writing by each employee — they cannot be assigned.
Intercompany IP licence (if parent retains IP)	If the parent already owns IP and the India subsidiary uses it, a formal licence agreement is required for transfer pricing purposes

You must also decide:

• Will India be a cost centre (subsidiary charges cost + markup to parent) or a profit centre (subsidiary earns revenue directly)?
• Where does your revenue sit — in India or in the parent?
• Does your India subsidiary invoice Indian customers, or does the parent?
• How will software built in India be licensed to or owned by the parent?

These decisions affect your corporate structure, tax position, FEMA compliance, and transfer pricing model. They are far easier to get right before incorporation than to fix retroactively.

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10. The Right Advisor Saves You Years of Problems

Most foreign founders who struggle with India operations didn't choose the wrong entity. They chose the wrong advisor — or fragmented their advisory across four disconnected vendors.

Running a foreign-owned Indian subsidiary involves:

• Company law (Companies Act, MCA, ROC)
• Foreign exchange law (FEMA, RBI)
• Tax (Income Tax, TDS, GST)
• Transfer pricing
• Payroll and labour law
• Statutory audit

When these are managed by different firms — a CA for accounts, a CS for ROC, an HR firm for payroll — critical gaps appear between them. FEMA filings get missed because nobody owns them. Transfer pricing documentation isn't coordinated with the tax return. Payroll and TDS don't reconcile. These gaps are where penalties accumulate.

What to look for in an India advisor:

Criterion	Why it matters
All disciplines in-house	No coordination gaps between CA, CS, payroll, and FEMA teams
ICAI registered and peer reviewed	Independent review of the firm's professional systems and assurance practices.
Experience with foreign-owned entities specifically	Domestic CA firms often don't know FEMA, TP, or parent company reporting requirements
Communicates with your parent-country finance team directly	Your CFO needs answers in English, in their format, on their timeline
Proactively notifies you of regulatory changes	India's rules change frequently — you should hear from your advisor before you hear from the tax department

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Frequently Asked Questions

How long does it take to set up a company in India?

Incorporation itself takes 7–12 working days once documents are filed with MCA. However, the apostille process for foreign documents typically adds 1–3 weeks, making the total elapsed time 5–8 weeks from decision to operational bank account.

Do I need to travel to India to set up a company?

No. The entire incorporation process is online. Digital signatures are done via video verification. Bank accounts can be opened remotely. You can receive your Certificate of Incorporation without setting foot in India.

Can my foreign company own 100% of the Indian subsidiary?

Yes, in most sectors. India's FDI policy allows 100% foreign ownership under the automatic route in IT, software, manufacturing, professional services, trading, and back-office operations. No government approval is needed for these sectors.

What is the biggest compliance mistake foreign companies make in India?

Missing the FC-GPR filing deadline. After shares are allotted, companies have 30 days to report the foreign investment to RBI. Many foreign companies are unaware this filing exists. Missing it results in compounding penalties. The second most common mistake is not filing INC-20A within 180 days of incorporation.

Does transfer pricing apply to my Indian subsidiary?

Yes. Every international transaction between the Indian subsidiary and its associated enterprise must be priced at arm's length and reported in Form 3CEB. Rule 10D provides limited relief from maintaining the prescribed documentation set where aggregate transactions do not exceed ₹1 crore, but arm's-length substantiation is still required.

Can I use global HR tools like Deel or Rippling for Indian payroll?

Not for statutory compliance. Global HR platforms do not support India-specific statutory filings such as Form 24Q, PF ECR uploads, ESIC returns, or professional tax. You need a dedicated India payroll and compliance provider.

What is FEMA and why does it matter for my India subsidiary?

FEMA (Foreign Exchange Management Act) governs all cross-border money flows involving India — how capital comes in, how profits go out, and what must be reported to the RBI. Every foreign-owned Indian subsidiary must comply with FEMA for every inbound and outbound transaction.

Who owns the IP created by my India team?

Under Indian copyright law, IP created by an employee belongs to the employer — the Indian subsidiary, not the foreign parent. You need a properly drafted IP assignment agreement between the Indian subsidiary and the foreign parent, plus a moral rights waiver in each employee's contract.

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KRPR & Associates  ·  Chartered Accountants  ·  ICAI Reg. No. 139415  ·  Peer Reviewed  ·  Pune, India  ·  Practicing since 2012

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About the Author

CA Rohit Lohade is a Chartered Accountant and Partner at KRPR & Associates, advising foreign-owned companies on India entry, FEMA and FDI compliance, transfer pricing and cross-border structuring. He also serves as Resident Director for multiple foreign-owned Indian subsidiaries.