• OPC company

Hello,

I am an Indian citizen holding an Indian Passport currently living abroad. I left India on 17th November 2020 and I will be going back to India for a month in March 2022. 

Now I want to start an OPC and LLP company in India. 

My questions are

When will I become an NRI?
If I am considered a resident of India still and become a partner and director as an Indian resident as of today but later I become NRI what will happen to my partnership and directorship and what form do I need to fill?
If I get a PR of a country do I lose my residency in India even if I don’t fall in the criteria of NRI as per the number of days?
How as a shareholder of OPC can I withdraw funds for my personal use like for credit card payment etc?
How as a Partner in LLP can I withdraw funds for my personal use like for credit card payment etc
I am a partner in a partnership firm in India that is not an LLP but a general partnership, what will to my status as a partner to that firm if I become an NRI.

Thanks
Jay
Asked 3 years ago in Civil Law

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10 Answers

I am an Indian citizen holding an Indian Passport currently living abroad. I left India on 17th November 2020 and I will be going back to India for a month in March 2022.

 

  1. You can start of OPC only if you are residing in India.
  2. LLP can be started even from outside India.
  3. If you become partner/director as resident and subsequently become NRI your status will not change. But if start OPC and become NRI, OPC has to be dissolved as only resident can start OPC.
  4. Your NRI status will continue after you gat PR.
  5. You are entitled to withdraw funds for personal use from LLP. Any income in India is taxable, income out of India is not taxable.
  6. NRI cannot hold shares in OPC.
  7. You can continue as a partner in partnership firm like any other Indian partner.

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

earlier it was possible to be classified as non-resident by staying outside India for 183 days now it has been enhanced to 245 days 

 

2) you continue to remain partner and director even after becoming NRI 

 

3) NRI can become an executive or a non-executive/independent directorof Indian companies whether public or private.

 

 

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

Dear Sir,

 

1)He/She is in India for 182 days or more during the financial year.

OR If he/she is in India for at least 365 days during the 4 years preceding that year AND at least 60 days in that year.

If you do no satisfy the condition laid out above– you will be considered a NRI

2) If you are a partner you may remain a partner even after your status changes to NRI.

3) If you get green card You still will be An NRI

4)Only a natural person who is an Indian citizen and resident in India shall be eligible to act as a member and nominee of an OPC. For the above purpose, the term “resident in India” means a person who has stayed in India for a period of not less than one hundred and eighty-two days during the immediately preceding one financial year.

5) You can continue as partner in the LLP or general partner ship and withdraw and use funds. Income from india will be taxed. An NRI needs a PAN Card if that NRI has got a taxable income in India

Thank you

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

- An Indian citizen residing outside India for a combined total of at least 183 days in a financial year is considered to be an NRI, however now it enhanced to 245 days. 

- Hence , you status will be converted in the month of June tentatively. . 

- In both the cases , you can continue to be partner and director of the company

- However, LLP Must have one Indian resident partner and second can be appointed as Foreign National / NRI Partner in LLP.

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

An Non Resident Indian (NRI) is an Indian Citizen who resides in India for less than one hundred & eighty two days during the course of the preceding financial year, or. who has gone out of India or who stays outside India for the purpose of employment, or. who has gone out of India or who stays outside India for carrying on business or vocation outside India, or who has gone out of India or who stays outside India for any other purpose indicating his intention to stay outside India for an uncertain period.

 

In exercise of the powers conferred by sub-sections (1) and (2) of Section 469 of the Companies Act, 2013 (CA, 2013), the Central Government, vide Notification GSR 91(E) dated 01st February, 2021 has amended the Companies (Incorporation) Rules, 2014 which shall come into force on the 1st day of April, 2021 and may be called the Companies (Incorporation) Second Amendment Rules, 2021.

The Ministry of Corporate Affairs (‘MCA’) amends One Person Companies (‘OPCs’) Rules vide aforesaid amendment. MCA amends Rule 3 related to One Person Company, Rules 6 related to One Person Company to Convert Itself into a Public Company or a Private Company in Certain Cases and Rule 7 related to Conversion of private company into One Person Company.

Before the aforesaid amendment, only a natural person who is an Indian citizen and resident in India are allowed to incorporate a OPC y. However, by making the amendment in sub rule (1) of Rule 3 for words, “and resident in India”, following words substituted “whether resident in India or otherwise”. By this amendment, now Non-Resident Indians (‘NRIs’) is also allowed to incorporate OPCs in India.

Further, for the purpose of this rule, the period of resident in India has been reduced from 182 days to 120 day. Now amended Sub Rule (1) of Rule 1 may be read as under-

“(1) Only a natural person who is an Indian citizen whether resident in India or otherwise 

(a) shall be eligible to incorporate a One Person Company;

(b) shall be a nominee for the sole member of a One Person Company.

Explanation I – for the purpose of this rule, “Resident in India” means a person who has stayed in India for a period of not less than one hundred and twenty days during the immediately preceding financial year

Explanation II.- For the purposes of this rule, while counting the number of days of stay of a director in India for the financial year 2018-2019, any period of stay between 01.01.2018 till the date of notification of this rule shall also be counted.”

Now, OPC can be converted into any kind of company any time and without any limit of paid up capital and turnover.

 

 

As per the changes, an Indian citizen will now have to stay out of the country for 240 days, against 182 previously to become a non-resident.

By getting PR of another country, you will not lose your Indian citizenship.

 

There is no such specific restrictions on the withdrawal of the contribution by the partners as per LLP Act,2008 and LLP Rules,2009Â and is guided by the provisions contained in the LLP Agreement. 

 

Even after you become NRI, you will remain as a partner in the Indian partnership firm

NRI can continue even as partner of Indian LLP even after becoming NRI. after becoming NRI. ❖ Fresh investment in LLP towards capital may be made through NRO to make it distinctively clear that fresh investment is also on non-repatriation basis.

 

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

An NRI (whether minor or adult) with a valid Indian Passport can apply for Aadhaar from any Aadhaar Kend

2) you can continue to have aadhar card 

 

3) you can open bank account in India 

 

4) As per FEMA regulation, when your status changes to NRI the resident savings account have to be converted to an NRO account. The bank then will designate your existing resident account to the NRO account and your payment will continue as it is.

 

5) An NRE account is a bank account opened in India in the name of an NRI, to park his foreign earnings; whereas, an NRO account is a bank account opened in India in the name of an NRI, to manage the income earned by him in India. 

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

1You have been advised about the calculation of period outside India for  acquiring NRI 

2. It will remain same. 

3. If that country permits you to open as per their rules. 

4. You can do it at your convenience. 

5. It is up to you. 

6. It will remain in the same status when it was opened. 

7. No.

8. Nothing,  you may be losing the privileges attached. 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Dear Sir ,

1) Nri status will be acquired after you complete the calculation of days necessary.

2) you aadhar card will remain same.

3)If the laws of the country allow then you can

4) When you attain non-resident status, you must re-designate your resident account to an NRO (Non-Resident Ordinary) account.

5) As per the Foreign Exchange Management Act (FEMA) guidelines, NRIs cannot hold resident FDs. They must convert it to an NRO deposit account. 

6) No govt does not notify, you will have to determine to file taxes

7)There is a penalty if you do not get the conversion done. 

Thank you

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

1. 182 days or more of your residence in india for current financial year or 60 days or more or 365 days or more in last 4 immediately preceding 4 years makes you resident in india. Otherwise you are non resident.

2. If you become NRI you need to do some additional formalities as per RBI regulations and Companies Act for the same.

3. No with PR you dont but if you take citizen of another country you will lose citizenship of india

4. Yes you can but the tax return regulations will be applicable to such withdrawals as per income tax rules

5. You will still be a partner as NRI if you have an indian partner

Nri can hold adhar card

yes you can open a bank account if you are not an NRI

No any one of both will suffice NRO or NRE

You need to liquidiate it or the tax regulations of RBI for NRI will be applicable

No no intimation you need to yourself keep a tab. 

You will suffer with penalties as per RBI regulations if the same violates the holdings rules of RBI for NRI

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

1. No

2. With the recent amendment in 2019 , the bill proposed that the Unique Identification Authority of India will now issue Aadhaar cards on arrival to NRIs who hold Indian passports as opposed to the traditional method of waiting for a mandatory 182 days.

3. Yes, a non resident and non citizens can open an account in the bank in that country where he is working. 

4. You can open the NRO . Any individual residing for more than 120 days in any abroad can open an NRO account. 

5. No , better correspondence with the official of any bank 

6. You can convert that account in NRE 

7. No

8. It is essential for an NRI to open Non-Resident External (NRE) or Non-Resident Ordinary (NRO) Account, to do any banking transactions in India. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

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