Subcontracts India

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Explore alternative funding options and financial solutions with Subcontracts India. If you are looking to buy or lease a Standby Letter of Credit (SBLC)  or Bank Guarantee (BG), you have arrived at your final destination. We are experts at handling issuance and monetization of SBLCs/BGs. We have done it many times over. Banks, Corporations, Airline Operators, Miners, Investment Bankers, Project Owners, Oil&Gas, Commodity Traders, etc. have successfully obtained SBLCs/ BGs  through us. If you follow our procedure, it is likely that you might obtain an SBLC / BG provided you are financially capable to transact and possess the right business credentials. 
We have been consistently endeavoring to simplify the process of Project Finance​ for the project promoters and owners across the world. The significance of submitting a concise yet profoundly informative project proposal cannot be overestimated. Fund Providers, Banks, Investment Bankers, Non Banking Financial Instituions (NBFCs), Venture Capitalists, Private Equity Investors, HNWIs, want to see a business plan that is short enough to keep the interest and yet long enough to cover the vital information. We realize that it is not easy to put an winning Business Plan in place unless the Business Plan writer has been thoroughly acquainted with the project right from its inception. We provide a full service package and guarantee success. There are many consultants who would accept any Business Plan written by anyone. However, we do not. Project Finance is a challenging task and our experts would like to do it in a highly evolved manner so that success is guaranteed. Our services do not come free and hence be prepared to pay our service charges when you use our services. 


HOW TO APPLY FOR PROJECT FINANCE
You must submit relevant information pertaining to your project through our online Business Plan Submission Form
The online Business Plan Submission Form enables you to quickly provide us with concise information about your project without your having to take time to complete a comprehensive application form with details of a project which may not interest us. While filling the Business Plan Submission Form you can use assistance provided by our experts on this page.
Our analysts evaluate projects individually, so if you have more than one project you should complete one copy of the form for each project for which you are seeking funding.
After you have submitted the Business Plan Submission Form, our analysts will quickly determine whether your project is likely to be of interest to us or not.
If our analysts determine that your project is unlikely to meet our criteria, we will quickly contact you, usually within a day or two, to inform you that your project is not for us.
But if our analysts determine that your project may be of interest to us we will contact you requesting additional detailed information about your project, usually by asking you to complete a comprehensive no-obligation written Project Finance Application Form which we will email to you. When you return this written Project Finance Application Form, our analysts will produce a recommendation for our executives' consideration. If our executives accept our analysts' recommendation you will be sent detailed information proposing a way forward.

IMPORTANT TO NOTE: 
We quickly respond to all inquiries provided these inquiries are submitted via our online Project Finance Inquiry form and the form is correctly completed.
We do not delegate executive time to an inquiry until your project, as expressed in your fully completed written Project Finance Application form, has been thoroughly evaluated by our analysts.
To ensure our executives do not waste time on unrealistic inquiries we do not enter discussions in any form until we have a full understanding of your project's potential and risks. We therefore do not offer meetings, hold telephone discussions or return telephone calls until we have thoroughly evaluated your project.
Please do not send us additional communications during the application phase as it delays the application process.
We do not finance projects valued at less than $5,000,000, we do not finance acquisitions and we do not finance projects in countries mentioned in this list
All our official communications are in English. We do not offer a translation service.


​We specialize in financing projects in the sectors listed below. However, this list is not exhaustive. 


​​INFRASTRUCTURE & PPP

Infrastructure projects such as roads, railways, airports, seaports, bridges, tunnels, power transmission, telecom networks, storage tanks, pipelines, irrigation, warehouses, cold storage, etc. are generally developed in the PPP (Public Private Partnership) model and involves a number of very complex legislation as well as financing challenges. However, these draw a lot of investor interest given the large sizes of such projects. 


ENERGY PROJECTS

Energy projects (both renewable as well as non-renewable) such as solar PV and solar thermal power plants,   wind turbines, waste-to-energy power plants, biomass power plants, hydroelectric power plants, thermal (coal as well as gas fired) power plants, geothermal power plants, nuclear energy power plants as well as other alternative energy projects are among the most favored for project financing. 


REAL ESTATE & HOUSING

Developing low cost public housing is a growing need around societies across the world and governments as well as Finacial organizations have come support such projects in increasing numbers. Urbanization upswing can be seen across the emerging nations and an accompanying demand for commercial and office spaces, apartments, luxury villas. 


TOURISM & HOSPITALITY

Tourism has come to be a priority industry across the world due to its sustainable nature and socio-cultural importance. The ability of this industry to generate economic growth and employment is immense. Hotels, Resorts, Restaurant Chains, Speciality Spas, Entertainment Parks, Boutique chains, Private Beaches, Beach Properties, Travel Operations, Tourist Centers, Recreation Facilities provide the infrastructure required for a flourishing Tourism Industry and hence provide a massive need as well as scope for Project Financing. 


HEALTHCARE, PHARMA & BIO-MEDICAL

Healthcare is a universal and mushrooming industry across the globe. Pharmaceutical research and Manufacturing facilities, Speciality Hospitals, Care Homes, Medical Training Centers, Diagnostic Centers, Pathological Laboratories, Medical Equipment Manufacturing facilities etc.are intrinsic part of a better healthcare environment. Projects supporting development of these facilities require finance and investors find these an attractive destination for the near term as well as long term term  investment horizon.


​EDUCATION / INSTITUTIONS

A growing number of Schools, Colleges, Universities, Vocational and Skill Development Training Centers, Automotive Training Institutes, Research Facilities, etc., are required to educate and train the citizens. This has an ever increasing potential and requires massive financial inputs to build and operate the supporting infrastructure of this sector. Human Development Index is an extremely important part of development and hence good projects are required which in turn fuels the need for project financing in this sector. 


OIL AND GAS UPSTREAM

Upstream oil and gas production and operations identify deposits, drill wells, and recover raw materials from underground. They are also often called exploration and production companies. This sector also includes related services such as rig operations, feasibility studies, machinery rental, and extraction of chemical supply. The sector draws large high risk high returns investments.


OIL & GAS MIDSTREAM

Midstream operations link the upstream and downstream entities, and mostly include resource transportation  (by pipeline, rail, barge, oil tanker or truck)  and storage services for resources, such as offshore tanks and reservoirs and gathering systems. Each segment of this sector invites huge investments. This is a less riskier than upstream investment with steadier returns.  


OIL & GAS DOWNSTREAM

This sector of the oil and gas industry is represented by refiners of petroleum crude oil and natural gas processors, who bring usable products to end users and consumers. They also engage in the marketing and distribution of crude oil and natural gas products. Companies engaged in the downstream process include oil refineries, petroleum product distributors, petrochemical plants, natural gas distributors, and retail outlets. 


PETROCHEMICALS

The petrochemicals industry is competitive, involves significant technological innovation, is capital intensive and operates in a global product market. In terms of production volumes the industry represents approximately 10% of the total petroleum industry. On the basis of product value, however, the petrochemicals industry represents a larger share of the total industry, reflecting the higher value of petrochemical products compared to fuels 


FERTILIZER

Fertilizer is a key ingredient in feeding a growing global population, which is expected to surpass 9.5 billion people by 2050. Half of all food grown around the world today, for both people and animals, is made possible through the use of fertilizer. As demand continues to grow, farmers around the world will continue to rely on fertilizer to increase production efficiency to produce more food while optimizing inputs. Growing demand continues drawing investment capital into this industry.


MANUFACTURING

Manufacturing Industry is by far the largest sector in terms of varieties. Anything that needs mass production fits the bill. Be it cement, steel, consumer electronics, apparel, processed food and beverages, medicines, cosmetics, toiletries, furniture, utensils, packaging, paper, etc. The list is just endless. To support the manufacturing process, large capital is required and this fuels the evergrowing demand for capital investment. Viable projects with good bankability would always find interested investors in this sector.


TECHNOLOGY & IT

​​Technical projects have their own unique set of needs and challenges. New technology must be researched, downtime must be kept to a minimum, and the organization must be helped to adapt to the change.  The goal of technology projects is to agree on the one way a process will be performed at all times. Integration between technologies is essential. Integration needs to be planned and tested based on agreed processes and detailed requirements. 


SPORTS & FITNESS

Increasing support provided by governments and promoters have seen the emergence of sports as a full time career option for many. This has facilitated the need for providing adequate infrastructure to sporting activities. There is big money involved in sports with increasing number of brands associating themselves with sports and fitness. Large scale sports infrastructure has started drawing unprecedented investor interest. We help projects to source required capital to finance them.


​AMUSEMENT PARKS

Amusement park features various attractions, such as rides and games, as well as other events for entertainment purposes. A theme park is a type of amusement park that bases its structures and attractions around a central theme, often featuring multiple areas with different themes. These  parks are stationary and built for long-lasting operation. Well presented amusement part projects with a robust ROI draws lot of investor interest.  


FOOD & AGRICULTURE

Growing urbanization has entailed the emergence of large consumption hubs and at the same time shrinking land availability for agriculture and farming activities. Newer technologies such as GM crops, Captive Farming, Hydroponics, Aquaponics, Polyhouse or Greenhouse farming, Vertical Farming have emerged to augment the supply requirements of a growing population. Lerge investments are flowing into this sector. 


LOGISTICS & SUPPLY CHAIN

​Logistics and Supply Chain Management are used interchangeably these days. Logistics is generally seen as a differentiator in terms of the final bottom line of a typical “hard and tangible goods” organization; enabling either a lower cost or providing higher value.  Logistics cover the broad functional areas: network design, transportation and inventory management.  Projects in this sector have seen explosive growth recently and this trend would continue into the foreseeable future. 


HUMANITARIAN

​​Broadly speaking, humanitarian projects aim to help people who are suffering the effects of environmental disasters and hardship. These projects will form part of the relief effort, working to mitigate ongoing effects, support the people affected, and put in place long term plans to ensure a brighter future. This means humanitarian projects may vary significantly in their goals, depending on the problem at hand. 


PROJECT FINANCING SOLUTIONS BY SUBCONTRACTS INDIA 


Project Finance is one of the key focus areas for Subcontracts India. We have access to several project financing groups and institutions that have institutionalized capabilities to successfully manage the unique and multidimensional process of project finance transactions led by customized project structuring approach.

These groups and institutions have been the lead arrangers and underwriters of a significant amount of project debt over the years. In the Indian project finance domain, they enjoy a leadership position and are acknowledged for their comprehensive domain expertise and knowledge in the infrastructure, manufacturing and mining sectors, having ensured timely financial closure of several big ticket projects.

Whether you're investing in renewable energy, telecommunications or water supply and waste water treatment – we develop the right solution for sustainably viable, flexibly structured financing to meet the needs of your transaction.

Backed by in-depth expertise you can benefit from our wide network in emerging and developing countries, our comprehensive knowledge of sectors and industries, and our 21 locations in Africa, Asia, Europe and Latin America. 
Undersanding Project Finance
Project finance is the financing of long-term infrastructure, industrial projects and public services based upon a non-recourse or limited recourse financial structure, in which project debt and equity used to finance the project are paid back from the cash flow generated by the project. Project financing is a loan structure that relies primarily on the project's cash flow for repayment, with the project's assets, rights and interests held as secondary security or collateral. Project finance is especially attractive to the private sector because companies can fund major projects off balance sheet.

Project Finance can be characterized in a variety of ways and there is no universally adopted definition but as a financing technique, a broad definition is:

“the raising of finance on a Limited Recourse basis, for the purposes of developing a large capital- intensive infrastructure project, where the borrower is a special purpose vehicle and repayment of the financing by the borrower will be dependent on the internally generated cashflows of the project”

This definition in itself raises a number of interesting questions, including:
  1. What is meant by ‘Limited Recourse’ financing – recourse to whom or what?
  2. Why is Project Finance typically used to finance large capital intensive infrastructure projects?
  3. Why is the borrower a special purpose vehicle (SPV) under a project financing?
  4. What happens if the internally generated cashflows of the project are not sufficient to repay the financiers of the project?

The terms ‘Project Finance’ and ‘Limited Recourse Finance’ are typically used interchangeably and should be viewed as one in the same. Indeed, it is debatable the extent to which a financing where the Lenders have significant collateral with (or other form of contractual remedy against) the project shareholders of the borrower can be truly regarded as a project financing. The ‘limited’ recourse that financiers have to a project’s shareholders in a true project financing is a major motivation for corporates adopting this approach to infrastructure investment.Project financing is largely an exercise in the equitable allocation of a project’s risks between the various stakeholders of the project. Indeed, the genesis of the financing technique can be traced back to this principle. Roman and Greek merchants used project financing techniques in order to share the risks inherent to maritime trading. A loan would be advanced to a shipping merchant on the agreement that such loan would be repaid only through the sale of cargo brought back by the voyage (i.e. the financing would be repaid by the ‘internally generated cashflows of the project’, to use modern project financing terminology).


A simplified project financing structure for a build, operate and transfer (BOT) project includes multiple key elements:

A special purpose vehicle (SPV) project company with no previous business or record is necessary for project financing. The company’s sole activity is carrying out the project by subcontracting most aspects through construction contract and operations contract. Because there is no revenue stream during the construction phase of new-build projects, debt service is possible during the operations phase only. For this reason, parties take significant risks during the construction phase. Sole revenue stream is most likely under an off-take or power purchase agreement. Because there is limited or no recourse to the project’s sponsors, company shareholders are typically liable up to the extent of their shareholdings. The project remains off-balance-sheet for the sponsors and for the government.


​​SECURITY CREATION

Generally in India, security for project finance is created over the following asset types: immovable property; movable fixed assets; current assets; shares; assignment of rights in project and insurance contracts; and a charge over the project bank accounts. The charge over immovable property is typically created by executing an indenture of mortgage or by undertaking a deposit of title deeds for the property. On the other hand, security over movable assets (both fixed and current) is created by executing a deed of hypothecation. Security over shares is created via a pledge, which requires possession to be transferred by way of deposit of the share certificates, or if the shares are in dematerialized form, by recording the same with the depository of shares. An assignment of rights (such as rent receivables) arising out of project contracts is done via a deed of assignment. The charge over immovable property, movable property and an assignment of rights can be clubbed together under a single indenture.

Lenders typically have security over real property, plant, machinery and equipment. If the land leasehold property, permission may be required from the lessor for the creation of charge. If the security is created via an indenture of mortgage, it is necessary to register the same with the local registrar of companies (RoC). The charge created over movable/immovable properties is also required to be registered with the Central Registry Of Securitization Asset Reconstruction and Security Interest of India (CERSAI)

Security may be taken over receivables without the express consent of the debtors. However, such charge over receivables or other current assets (which is a floating charge) crystallizes into a fixed charge only upon occurrence of an event of default.

Typical project financing security package involves the creation of security over the project specific bank accounts. The procedure to be followed in this case mirrors that of any other movable assets. A notice of such a charge is given to the bank.

Security over shares is a prevalent for of security creation in India. Typically, a pledge agreement is entered into with a power of attorney to enforce the pledge which is also executed by the pledger upfront. If the shares are in certified form, the share certificates are physically deposited along with a share transfer form. If the shares are in dematerialized form, certain forms (indicating the agreement number, closure date of the pledge, quantum of shares pledged, etc.) will be required to be submitted at the relevant share depository.

In India, stamp duty on security documents varies from state to state. In some states, stamp duty is uncapped, whereas in others the liability is capped. Additionally, all indenture of a mortgage must be registered with the local registrar of assurances. In some states, a mortgage created via a deposit of title deeds is also compulsorily registrable; however, in most states such registration is optional (viz., powers of attorney and affidavits) are required to be notarized by a notary public, at a nominal charge.

The time taken to register a mortgage with the local registrar of assurances may vary drastically, depending on the efficiency of the local bureaucracy. Similar to stamp duty, registration fees payable also vary from state to state, as some states have ad velorem charges whereas others have capped limits. Filing/ registration with the RoC and AERSAI are required to be done online and is neither time-consuming nor expensive.

For the creation of security over freehold land, no consents or regulatory approval is required unless it has been reserved for a specific purpose (such as forest land, coastal land) by the government. If the land over which the security is created is leasehold in nature, typically prior consent of the lessor would be required. However, with respect to pipelines (once embedded in the earth), the land over which pipelines for the transport of petroleum, minerals or gas are laid are not transferred to the borrower, who merely acquires the rights of a user over the land. Such right of way may also be assigned to the lenders.

SECURITY TRUSTEE

The “trust” structure is recognized and the tights and obligations of the security trustee is typically recorded in a security trustee agreement. Such security trustee agreements grant the trustee the right to sue, on behalf of all the lenders cumulatively, for the enforcement of the security and to apply the proceeds to the claims of all lenders.  A security is trust is recognized in India, so the security trustee can sue for the enforcement of the security and can apply the proceeds to the claims of all lenders. There is also no bar on any lender suing for enforcement independently.

ENFORCEMENT OF SECURITY

The timelines for enforcing security may depend on the nature of security held by the lender. To illustrate, enforcement of a pledge created over shares, which are in dematerialized form, is relatively simple and does not require a decree of a court of competent jurisdiction. Enforcement of a mortgage may require a decree of the court under the Civil Procedure Code, 1908 or enforcement action under the securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In a scenario where an insolvent company is subject to proceedings under the IBC, a publicly solicited bid process is undertaken wherein bidders are required to submit resolution plans that are required to be inter alia approved by the committee of creditors. In assets in regulated sectors (e.g. airports, telecommunications, roads) the enforcement process is done through a “substitution” of the defaulting company by an entity nominated by the lenders, with the consent of the relevant regulatory authority.

Under Indian law, a foreclosure suit in respect of a mortgage may be filed by a mortgagee to debar the mortgagor of his right to redeem the mortgaged property in the event that the mortgagor is unable to pay the amounts due to the mortgagee. While foreclosure proceedings may be initiated under the Foreign Exchange Management (Acquisition and transfer of immovable property in India) Regulations, 2018, from transferring any immovable property in India, unless permitted by the Reserve Bank Of India (RBI). Additionally, foreclosure suits may only be filed under the Transfer of Property Act, 1882 by a mortgagee by conditional sale or a mortgagee under an anomalous mortgage. However, if the mortgage creation is by way of an English mortgage, foreclosure suits may not be filed.

BANKRUPTCY AND RESTRUCTURING PROCEEDINGS

The IBC is the primary legislation governing insolvency of corporate entities today. The initiation of a corporate insolvency resolution process (CRIP) against the project company (which would ordinarily last at least 180 days, extendable by another 90 days, exclusive of any time spent in litigation). Accordingly, the project lender will be unable to enforce or exercise any rights in respect of its security during this period.

In the event of a successful CIRP, the IBC permits the resolution plan to provide for, inter alia, the  modification and release of pre-existing security interests created by the corporate debtor. In case a successful resolution plan (approved by at least 66% of voting share of committee of creditors and the National Company Law Tribunal (NCLT)) provides for any such modification/release, the project lender will lose its right to enforce its security related rights post approval of the resolution plan.

Under the IBC, “insolvency resolution process costs” and “liquidation costs” are accorded the highest priority. Besides this, the payment of workmen’s dues for the period of 24 months preceding the liquidation commencement date is ranked pari passu with the dues of the second creditors that have relinquished their security interests to the liquidation estate. The IBC also contains protections in favor of creditors against antecedent transactions entered into by the corporate debtor during specified look-back periods (calculated backwards from the insolvency commencement date). Such provisions are equally applicable to transactions relating to security interests created over the assets of the company as well.

Under the IBC, these include transactions that are “preferential” in nature (and pertain to an antecedent liability owed to a creditor, surety or guarantor), those that are “undervalued” (including gifts), those that defraud creditors (which must necessarily pertain to undervalued transactions, which were entered into with the deliberate intention to defraud creditors), and such credit transactions that are “extortionate” in nature.

Further, the Income Tax Act, 1961 provides for transfers or charges to be void against any tax claim where it is created during the pendency of any tax proceeding or outstanding tax demand, without prior permission of the tax department.

While the IBC provides for and governs bankruptcy of individuals, partnership firms, limited liability partnerships and corporate entities in India, the provisions pertaining to bankruptcy of individuals have not yet been made operational. The regime, however, does not extend to the bankruptcy of financial service providers, which continue to be governed under the Companies Act, 2013. The Banking Regulation Act, 1949 governs the winding up of banking companies.

Post the initiation of the CIRP under the terms of the IBC, creditors are prohibited from enforcing their security interests and seizing the assets of a company. However, outside the IBC framework, there are several ways in which a creditor can enforce its security and seize the assets of a project company out of court. To illustrate, a creditor having security by way of an English mortgage has the right to sell such mortgaged property by way of private sale. Similarly, in respect of security by way of pledge, a creditor is entitled to enforce such a pledge without resorting to court proceedings, and to effect the sale of the pledged goods, after having given due notice to the pledgor.

Under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2001, banks, notified financial institutions, asset reconstruction companies, debenture trustees and certain notified NBFCs are conferred with private enforcement rights in respect of their security interests, other than in respect of pledges and liens. However, such rights do no extend to foreign creditors.

There are certain mechanisms that are available to companies to achieve a restructuring of its debts, outside of the formal insolvency regime provided for under the IBC, including the cramdown of its dissenting financial creditors. On February 12, 2018, the RBI had issued a circular titled “Resolution Of Stressed Assets- Revised Framework” (which resulted in an overhaul of all previous restructuring schemes issued by the RBI), under which lenders were obligated (either singly or jointly) to formulate a resolution plan which may provide for the change in ownership or restructuring of the corporate debtor, the moment there is a default in the company’s account. However, the said circular was struck down by the Supreme Court of India on April 2, 2019. The RBI Governor has, on April 4, 2019, issued a statement  stating that the RBI will take necessary steps, including issuance of a revised circular, as may be necessary, for expeditious and effective resolution of stressed assets.

In July 2018, a large majority of Indian banks have also entered into the Inter-Creditor Agreement for Resolution of Stressed Assets as part of Project Sashakt upon recommendations of the Sunil Mehta committee. Under the framework, the lead lender shall be authorized to formulate the resolution plan, which shall be presented to the other lenders for their approval. The decision-making shall be by way of approval of majority lenders, that is, the lenders with 66% share in the aggregate exposure. Once the resolution plan is approved by the majority, it shall be binding on all the lenders that are a party to the inter-creditor agreement.

Under the IBC, upon the initiation of the CIRP against the corporate debtor, it is the resolution professional that takes on the role of the management of the company, and the powers of the board of directors remain suspended during this period. In terms of section 66(2) of the IBC, directors may be held personally liable to make contributions to the assets of the corporate debtor (on an application made by the resolution professional to the NCLT), if such director knew or ought to have known that “there was no reasonable prospect” of avoiding the commencement of the CIRP against the corporate debtor under the terms of the IBC, and did not exercise the due diligence in minimizing the potential loss to the creditors during this period.

Separately under Section 66(1) of the IBC, such persons who are knowingly party to the carrying on of the business of the company during its CIRP or liquidation, in a manner that demonstrates their intent to defraud the creditors of the company, or for any other fraudulent purpose, may be held liable to make contributions to the assets of the corporate debtor (on an application made by the resolution professional to the NCLT).

FOREIGN INVESTMENT AND OWNERSHIP RESTRICTIONS

The foreign ownership of an Indian project company is subject to the Foreign Exchange Management Act, 1999 (FEMA) and the rules and regulations made thereunder. The Maser Direction on Foreign Investment in India read with the Foreign Exchange Management (Transfer or Issue of a Security by a Person Resident Outside India) Regulations, 2017 (FEMA Regulations, 2017) empowers the RBI to prohibit, restrict or regulate the transfer or issue of any security by a person resident outside India. FEMA Regulations, 2017 provides: (i) the limit of foreign investment in each sector in India which cannot be exceeded; and (ii) the entry routes for foreign investment in various sectors, which may be either automatic or with government approval. FEMA Regulations, 2017 also lists out the prohibited activities, which include real estate, agricultural activities, atomic energy and railway operations.

Further, from a tax perspective, where any taxpayer, including a foreign company, acquires any property, i.e. shares or other instruments which are characterized as security, then it must acquire such share or security at a “fair market value” as determined in accordance with a prescribed rule for valuation. If the consideration paid is less than such fair market value, then the difference would be subject to tax in the hands of the foreign investor as “income from other sources” at the rate of 40% (plus applicable surcharge and cess) in hands of a company or 30% (plus applicable surcharge and cess) in case of other investors.

There are several bilateral and multilateral investment treaties entered into by India with various countries in order to promote trade and commerce within the country. India also has comprehensive Double Taxation Avoidance Agreements (DTAA) with 88 countries, out of which 85 are presently in place. The Income Tax Act, 1961, provides for relief for two types of taxpayers. One is for taxpayers who have paid the tax to a country with which India has signed a DTAA, while the other is for taxpeyers who have paid tax to a country with which India has not signed a DTAA. The rates differ from country to country. However, there are no treaties providing explicit protection to a foreign entity from restrictions on exchange control.

The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 applies in relation to land acquisitions by the government for public purpose and compensation paid thereof. The Indian Constitution also grants the government the right to compulsorily acquire any property for a public purpose, upon payment of compensation. The rights on the projects undertaken through Public Private Partnerships (PPP) are automatically transferred to the concessioning authority at the end of the concession period.
 

GOVERNMENT APPROVALS/ RESTRICTIONS

Each infrastructure sector in India has one or more regulators that exercise jurisdiction over the particular sector. For example, the Airports Authority of India (AAI) and the Directorate General of Civil Aviation (DGCA) regulate the airports/aviation sector, while the roads sector is regulated by the National Highway Authority of India (NHAI) or the Ministry of Aviation and Ministry of Road Transport and Highways (MORTH), amongst others. Concession agreements or power purchase agreements, for example, may also be entered into with state-specific utilities/agencies.

Security documents are required to be filed and registered with certain authorities.

The government retains sovereign rights over ownership of natural resources, and the right to use such natural resources shall be subject to the terms of the licenses granted by the government. Land and licenses in respect of natural resources cannot be directly held by a foreign entity; however, it may be held by an Indian entity owned and/or controlled by such foreign entity, subject to the foreign investment thresholds specified by the government.

Royalties are payable for the extraction or export of natural resources, the amount for which will depend on the manner in which such concession was obtained and in accordance with the stipulations set out under the applicable law. Further, income tax is payable on income from extraction or export of natural resources.

Capital account transactions (which alter assets and liabilities), unless specifically permitted by the RBI or under FEMA, are prohibited. Specified routes are available for equity investment, borrowings, etc. Taxes on foreign currency exchange transactions would be levied depending on whether it results in income or deemed income in India. The actual transaction of foreign currency exchange may also be subject to the Goods and Services Tax (GST).

Tax is levied on remittances and repatriation of investment returns, levied by way if Income tax or capital gains tax, depending of the nature of the return. No tax is levied on the shareholder in the Indian project company for distribution of dividends under the law currently in force. However, the Indian company distributing dividend is subject to additional dividend distribution tax at the rate of 20.56% (including applicable surcharge and cess). Capital gains would be taxed as short term or long term depending on the period of holding the asset. Long-term capital gains arising on the sale of shares is generally taxable in the hands of a foreign investor at the rate of 10% (plus applicable surcharge and cess). Short-term capital gains would be taxed at the rate of 40% (plus applicable surcharge and cess). However, a lower rate of 30% is applicable on short term capital gains in the case of a foreign portfolio investor. Further, the short-term capital gains may be taxed at 15% only, if the gains are realized upon sale of the security on the stock exchange and the securities transaction tax paid, as prescribed.

Onshore and offshore foreign currency accounts are no permitted under applicable law, except in limited circumstances, as set out in the Foreign Exchange Management (foreign currency accounts bu a person resident in India) Regulations, 2015. For instance, an Indian project company receiving foreign investment under the foreign direct investment (FDI) route is permitted to open and maintain a foreign currency account with an authorized dealer in India, provided that the Indian project comoany has impending foreign currency expenditure. In the instance referred to hereinabove, the account is required to be closed immediately after the requirements are completed and is not permitted to be operational for more than six months from the date of the opening of such an account.

In addition to restrictions on declaration of dividend under the financing documents, the Companies Act, 2013 permits declaration of dividend only out of the profits of the Indian company and after maintaining reserves for depreciation. The payment of such dividend will be subject to the taxes mentioned above.

Depending on the nature and size of the project, project developers will be required to seek environmental clearances, approval of the resettlement and rehabilitation plan, consent to establish and operate, forest clearances and wildlife clearances, amongst others.

Any procurement by project companies may be governed by the terms of the bid documents and the subsequent concession agreements that may be signed by such a project company. That being said, in certain instances, additional taxes or duties may also be levied (for instance- the recently introduced safeguard duty on the import of solar panels from certain countries). 


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