EASE OF DOING BUSINESS IN INDIA A PRACTICAL OVERVIEW

What is ease of doing business? Many aspiring businessmen, entrepreneurs, startups, business entities looking to invest in India wonder, what exactly mean by ease of doing business In India? What was tough earlier, which has become easier now? What is ease of doing business practically? This article is an attempt to sum up evolution of Indian Corporate governance and working methodologies that have helped make in India and ease of doing business a great success. 

Since 2014 the Government of India has under a visionary leadership of honorable Prime Minister Shri. Narendra Modiji, climbed up the ranking in ease of doing business in India from 132 in 2008 to 77 in 2018 and in year 2019 it has jumped by 14 places and now we stand at Number 63 among 190 economies. The World Bank has developed a Doing Business Index wherein it ranks 190 economies all over the world on the basis of their ease of doing business index each year. A high ranking is indicative of an ideal regulatory and business environment for starting and operating a business entity. 

Mr. Junaid Ahmad, World Bank Country Director in India praised Indian government policies by quoting that, “India’s impressive progression in the Doing Business rankings over the past few years is a tremendous achievement, especially for an economy that is as large and complex as India’s. Special focus given by the top leadership of the country, and the persistent efforts made to drive the business reforms agenda, not only at the central level but also at the state level, helped India make significant improvements,” The rankings are determined by aggregating scores received across ten indicators such as

1.      Starting a business

2.      Obtaining construction permits

3.      Getting electricity

4.      Registering property

5.      Getting credit

6.      Protecting minority investors’ interests

7.      Paying taxes

8.      Trading across borders

9.      Enforcing contracts and

10.  Resolving insolvency.

Sustained business reforms over the past several years gas helped India jumped 14 places to move to 63rd position in this year's global ease of doing business ranking. India put in place four new business reforms during the past year and earned a place in among the worlds top ten improves for the third year in a row. 

Out of these ten indicators, three indicators i.e. starting a business, protecting minority investors and resolving insolvency fall within the ambit of the Ministry of Corporate Affairs under provisions of Companies Act, 2013. Amendments in various Companies Rules have also carried out to achieve similar objectives.

The MCA has made rapid strides towards improving the legal framework, simplifying procedures and speeding up decision-making for promoting ease of doing business and creating a healthy environment for investment and corporate growth.

Some of the major initiatives undertaken by MCA include

a)      Simplification of forms and procedures.

b)      Clarifications/elaborations have been made in the form of circulars after consultations and interactions with business chambers, corporate and accounts professionals. These have removed doubts and facilitated a smooth implementation of the Companies.  

c)      Statutory orders to ‘remove difficulties’ have been issued for smooth implementation of the Companies Act, 2013.

d)      Bringing provisions for minimum capital and company seal at par with international best practices.

e)      Simplifying approval for related party transactions without unduly diluting safeguards for minority shareholders.

f)       Discontinuation of certain forms, and substitution of a simple declaration instead of affidavits.

g)      Procedural requirements to appoint foreign nationals as Directors in Indian Companies have been drastically reduced.

h)      Arrangements have been made for integration of Name Availability, allotment of Direct Identification Number (DIN), Company Incorporation and Commencement of Business with the unified e-business portal being developed by the Ministry of Industries and Commerce.

i)       Fee payable by small companies for various services has been significantly reduced.

j)       Arrangements to enable Indian companies to follow new Accounting Standards, i.e. Ind-AS (compatible with the International Financial Reporting Standards – IFRS) completed. This will facilitate access for Indian companies to international capital markets.

k)      Amendments have been made in the Insolvency and Bankruptcy Code, 2016 to facilitate insolvency resolution process.

 While looking at the parameters for assessing the ease of doing business, we have to look at 3 factors predominantly.

A] SETTING UP OF BUSINESS ENTITY

While analyzing the First Aspect of ease of doing business in India, we will have to focus on types of entities and manner in which the incorporation process is followed in respect of each form of business entity. In India we have predominantly following forms of Business entities i.e. Private Limited, Public Limited, Limited liability Partnership, Section – 8 Company (Company not for profit), Farmer Producer Company and One Person Company. These are all registered at Registrar of Companies established by Ministry of Corporate Affairs.

One of the aspects which is improving year by year in India is process of registration. From a lengthy, time consuming, heavy paperwork, multiple forms and complex process, India is shifting to a one form, self-declaration and quick process.  Apart from simplification of process, another aspect is multiple registrations now are facilitated under single application. For the purpose of streamlining the process of ‘starting a business’, the MCA has undertaken numerous measures. Central Registration Centre (CRC) for name reservation and incorporation of companies & Limited Liability Partnership (LLP) has been set up which has reduced the time involved in the process to less than a week as opposed to an average of at least 15-20 days earlier. The name reservation process (RUN) has been simplified and new Web Forms ‘SPICe+ and AGILE– PRO’, have replaced the SPICe form.

 Integration has been brought about between MCA21 and CBDT for PAN and TAN. Zero fee is charged for incorporation of all companies with authorized capital upto Rs.15 lakh or members upto 20 where no share capital is applicable. The Companies (Authorized to Register) Rules, 2014 provide for conversion of society, trust into a section 8 company which will help these forms of entities to gain advantages associated with a company. LLP with less than 7 members can also convert themselves into a private limited company. In order to give boost to Startups, the MCA has given a number of relaxations in various compliances under the Companies Act, 2013.

 v  CENTRAL REGISTRATION CELL AND SPEED UP PROCESS

 The MCA brought about a transformational change in processing the applications of company’s name reservation and incorporation processes by undertaking Government Process Re-engineering (GPR) and setting-up the CRC in the year 2016.The project to transform the processing of e-forms for company incorporation was undertaken with one clear objective of reducing the processing time to one day. The MCA rolled out the first phase of CRC on 25th January, 2016 for processing Name Reservation applications and second phase of CRC for processing Incorporation applications on 28th March, 2016. As per the official statement of Injeti Srinivas, Secretary, Ministry of Corporate Affairs, Govt. of India to Chartered Secretary a monthly publication of Institute of Company Secretaries of India currently, more than 90% applications are being approved within one working day. This has resulted in speed, greater transparency, uniformity and removal of discretion.  

v  SPICE AND SPICE +

SPICe was a simplified and completely digital form for company incorporation which aimed at providing speedy incorporation service in line with international best practices. SPICe has now been replaced with an upgraded integrated version, i.e., SPICe+ w.e.f. 23rd February, 2020. With the introduction of SPICe+, not only the incorporation but also majorly all the initial registrations are integrated. SPICe+ offers 10 services by 3 Central Govt. Ministries & Departments (Ministry of Corporate Affairs, Ministry of Labour& Department of Revenue in the Ministry of Finance) and One State Govt. (Maharashtra), thereby saving procedures, time and cost involved in starting a Business in India and is applicable for all new company incorporations w.e.f. 23rd February 2020.

Earlier the incorporation of companies was handled by the Registrar of Companies across India. Now, the name reservation and incorporation of companies is handled at a centralized location i.e. CRC. With the introduction of SPICe+ in last week of February 2020, this process has been further strengthened. The services offered by SPICe+ and AGILE-PRO include (i) Name reservation. (ii) Incorporation (iii) DIN allotment (iv) Mandatory issue of PAN (v) Mandatory issue of TAN (vi) Mandatory issue of EPFO registration (vii) Mandatory issue of ESIC registration (ix) Mandatory issue of Profession Tax registration (Maharashtra) (ix) Mandatory Opening of Bank Account for the Company and (x) Allotment of GSTIN (if applied for).

In India, companies are being incorporated in a half to one day’s time period. On an average, about 10,000-12,000 companies are incorporated per month and more than 1.0 Lakh -1.2 companies are incorporated per Annum in India through CRC. To give you an idea, in January, 2020, more than 12700 companies were incorporated, while in February, 2020, the figure was close to 10500. CRC processes more than 90% forms for name reservation and more than 75% forms for incorporation of the companies within thesame day. In January, 2020, average time taken to process incorporation forms was 4.19 hours, while for name reservation it was 3.02 hours. If the forms are complete in all respect, approvals do not take more than half a day or a day depending upon when they have been filed. If forms are filed, say, between 9 AM -11AM and they are complete in all respect, by afternoon or end of the day approvals are accorded. If the forms are filed beyond working hours or on a closed holiday, they would be taken on next working day.

v  REFORMS CARRIED OUT BY THE MCA FOR LLPS IN INDIA

Along with companies, LLPs too are regulated by the MCA. For us, it is important that this structure of business organization is adequately regulated while providing them equitable ease of doing business. It is with this thought that Web Service titled ‘RUN-LLP (Reserve Unique Name – Limited Liability Partnership)’ has been introduced to replace the erstwhile Form 1 (Application for reservation or change of name). Also, a new integrated Form christened FiLLiP (Form for incorporation of Limited Liability Partnership) has been replaced with the erstwhile Form 2 (Incorporation document and subscriber’s statement) combining therein 3 services i.e., (a) Name reservation (b) Allotment of Designated Partner Identification Number (DPIN/DIN) (c) Incorporation of the LLP. The centralized registration process at CRC is likely to bring down the processing time to D+1 akin to company’s incorporation forms and thus spur the growth of business in the country.

B] OPERATIONS AND COMPLIANCES

v  DECRIMINALIZATION OF COMPOUNDABLE OFFENCES UNDER THE COMPANIES ACT, 2013

The MCA has undertaken several reforms in the country for providing ease of doing business to law abiding corporates, fostering improved corporate compliance for stakeholders at large, and also to address emerging issues having impact on the working of corporates in the country.

Decriminalization of compoundable offences that are technical or procedural in nature are inherently beneficial to all stakeholders involved and promote greater compliance. Imposition of penalties by the Adjudicating Officer does not require them to establish the element of mens rea, making the process of imposition of penalties faster than a criminal prosecution. This move also helps direct the NCLT’s focus and resources only on defaults involving elements of public interest. At the same time, the company or officer in default involved is not made subject to a criminal proceeding for a technical or procedural lapse. It makes the Indian mainland more attractive to potential investors.

 v  PROTECTION TO INDEPENDENT DIRECTORS AND NON-EXECUTIVE DIRECTOR

The MCA in its notification dated 2nd March, 2020 clarified that the prosecution proceedings against the independent and non-executive directors shall not be initiated unless there is strong evidence of their complicity in frauds committed by the companies.

The communication clearly articulates the MCA’s intent to give protection to independent directors and other non-executive directors from prosecution for both civil and criminal offences unless there is a strong evidence of them being party to any fraud committed by the company, which is in consonance with section 149 (12) of the Companies Act 2013.

 v  MCA AND INITIATIVES TO PROTECT HUMAN RESOURCE

The MCA has been taking various initiatives for ensuring responsible business conduct by companies. The National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) have been revised and released as National Guidelines for Responsible Business Conduct to align with United Nations Guiding Principles on Business & Human Rights (UNGPs) and Sustainable Development Goals (SDGs). The Committee on Business Responsibility Reporting (BRR) constituted by the MCA to formulate BRR formats for listed and unlisted companies is in the process of finalizing its report. Further, it is important that apart from doing ease of doing business, there should be ease of life. The MCA is steering the process of formulating a National Action Plan on Business and Human Rights (NAP).

v  MCA TOWARDS STRENGTHENING THE E-GOVERNANCE OF VARIOUS PROCESSES UNDER THE STATUTES

The MCA-21 system serves as a common platform connecting front-end stakeholders like corporates with the Regulator i.e., MCA. It is not only working as a service delivery platform but is also assisting MCA in undertaking its regulatory and enforcement functions, effectively maintaining databases, timely data dissemination and efficiently redressing stakeholders’ grievances. Currently MCA-21 system, is running in its second version i.e. v2.

MCA is working on Version 3 (v3) of MCA-21 with an objective of enhanced ease of doing business, e-adjudication, and compliance management system. Version 3 aims at comprehensive data analytics. Basically, the purpose is to boost the system with the support of emerging technologies including Artificial Intelligence and Machine Learning and to develop some more modules with additional features, provide better user experience and quicker processing.

C] EASE IN EXIT AND INSOLVENCY 

 v  The Insolvency and Bankruptcy Code, 2016 (IBC) and Ease of Doing Business

The Insolvency and Bankruptcy Code, 2016 (IBC) has resolved 167 cases amounting to Rs 3.68 lakh crore unpaid loans/dues of banks and vendors until November 2019 in its three years of existence. Out of Rs 3.68 lakh crore, the insolvency law has helped in recovering Rs 1.57 lakh crore, or 42 per cent of the total dues and nearly 200% of liquidation value.

The IBC was enacted on May 28, 2016 to replace the earlier laws and to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of the Government dues.

As per the RBI Annual Report 2019, the gross NPA declined to 9.1% in March, 2019, from 11.2% in the previous year. In terms of recovery of dues, on an average 42.5% of the claims filed through IBC in the financial year 2018-19 were recovered against 14.5% under SARFAESI Act, 2002.

To further strengthen the framework of insolvency, there have been four sets of amendments till date to ensure strict and quick timely recovery from defaulters. The amendments have also helped improved ranking in the World Bank Ease of Doing Business Report 2021. These inter alia include allowing for initiation of liquidation proceedings at any time during the CIRP process, provision which expressly requires that the dissenting financial creditors shall be paid not less than the amount to be paid to such creditors in accordance with Section 53(1) in the event of liquidation and provisions which provides for continuation of supply of goods and services “critical” to protect and preserve the value of the corporate debtor and manage the operations of such CD as a going concern.

IBC has provided with quick, time bound and simplified process for voluntary closure of the Company. This has collectively resulted into overall sooth exit of any company either due to voluntary closure of operations or due to bankruptcy or insolvency.