MUMBAI SI LI C O N VALLE Y BAN G A LO RE SI N G A P O RE MUMBAI BKC NEW DELHI MUNICH NE W YO RK

Destination India:
Welcome Retail
Legal, Tax & Regulatory
Primer with Industry insight

September 2018

© Copyright 2018 Nishith Desai Associates www.nishithdesai.com

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

September 2018

ndaconnect@nishithdesai.com

© Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

Contents
1. INTRODUCTION 01

I. The Indian Retail Story 01

II. Global Positioning of the Indian Retail Sector 01
III. Factors Considered by Various Stakeholders 01

2. INDUSTRY ANALYSIS 03

I. The Concept of Retail 03

II. Formats 03
III. Segment-wise activity 06
IV. Demand in the retail sector 08
V. Opportunities & Challenges 08

2. REGULATORY REGIME 10

I. Regulatory Patterns Across the Globe 10

II. Foreign Direct Investment Regime 11
III. Other Corporate laws 20
IV. Tax laws 21
V. Direct Taxes 21
VI. Indirect Taxes 25
VII. Competition Laws 29
VIII. International Trade Law 30
IX. Intellectual Property Regime 32
X. Employment Laws 32
XI. Telecom and Information Technology Laws 33
XII. Payment and Settlement Laws 33
XIII. Consumer Protection Laws 34
XIV. Miscellaneous 34

3. PERMISSIBLE MODELS FOR ENTRY OF FOREIGN PLAYERS 35

I. Franchise Agreements 35
II. Strategic Licensing Agreements 36
III. Manufacturing and Wholly Owned Subsidiaries 37
IV. Investment into an Indian owned and controlled company 37
V. Investment in Back end Structure 38
VI. Operating based on Marketplace Model 38
VII. Operating based on Inventory based Model 38
VIII. Investment under the Foreign Portfolio Investment Route 39
IX. Investment in brands using step down subsidiary model 39

4. CONCLUSION 40

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

1. Introduction
the Global Retail Development Index 2017,
I. The Indian Retail Story backed by rising middle class and rapidly
growing consumer spending. India’s retail
The Indian retail sector has experienced
market witnessed investments worth USD
incredible growth over the last decade with
800 million by private equity firms and
a significant shift towards organised retailing
wealth funds in 2017. 3
format. Despite socio-political challenges and
stringent conditionalities on foreign direct
investment (“FDI”) in retail trading, the Indian II. Global Positioning of the
retail sector has grown too large to ignore. Indian Retail Sector
India’s strong growth fundamentals, increased
urbanization, increased digital connectivity Markets go through four stages of retail
and greater acceptance to online retail medium development (opening, peaking, maturing
provides immense scope for retail expansion for and closing) as they evolve from emerging
both domestic and foreign players. to mature markets, a process that typically
spans five to 10 years.
India’s retail market contributes to over 10
percent of the country’s Gross Domestic Product The window opens when the population
(GDP) and around 8 percent of the employment. becomes wealthier, when logistics start
The share of the Indian retail market is expected improving, when ownership regulations
to increase by 60 percent to reach USD 1.1 trillion become friendlier to international firms and
by the year 2020.1 when country’s various economic, political
and social risks settle down to acceptable levels.
Both organized and unorganized retail segments
co-exist in India and continue to contribute to Given the current circumstances in India one
growth of the retail sector as a whole. can say that there exists immense window of
opportunity for retail development in India.
Currently, the organized retail market
contributes to 93 percent of the total sector while India holds a substantial advantage over other
the unorganized retail market contributes to the emerging retail destinations owing to its strong
rest.2 This was not the same few years ago when domestic consumption and low rate of market
substantial business came from unorganized penetration by overseas retailers.
retail sector such as traditional family run
Accordingly, India remains an attractive
and corner stores. The impressive growth
destination for investment.
of the organized sector is also largely due to
penetration of many large retail companies and
introduction of Goods and Service Tax in India. III. Factors Considered by
Various Stakeholders
A. Outlook of Indian Retail Sector
There is a paradigm shift in global investors’
The Indian retail market is expected to become
destination choices: from ‘efficiency seeking’
the world’s third-largest consumer economy,
to ‘market seeking.’ Also, there is a shift from
reaching USD 400 billion in consumption by
sectors which are heavily regulated to more
the year 2025. Further, India is ranked first in
varied industries including healthcare, retail,
education etc.
1. https://www.ibef.org/industry/retail-india.aspx. Last
accessed: June 13, 2018.
2. Ibid 3. Ibid

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 Provided upon request only

Particularly in the retail sector, international

retailers are now focusing on portfolio of
Governments across the globe have begun
countries – with different levels of risk,
to take cognizance of the corresponding
at different stages of maturity and with
benefits in development, export boost
distinct consumer profiles to balance short
and supply chain improvements that
term and long-term opportunities.
FDI in retail can yield.
Global players have become more strategic in
their expansion and in avoiding the operational
pitfalls of entries into developing markets.
More specifically in India’s context, opening up
Accordingly, international players are choosing
the retail sector for FDI has been placed in the
ownership models such as franchisee or joint
context of moderating inflation. The idea is that
venture to tap developing markets.
organized storage and transport chains will help
Governments across the globe have begun to cut nearly 40 percent transport and distribution
take cognizance of the corresponding benefits losses in the present supply chains, one of the
in development, export boost and supply chain factors pushing up food prices to high and
improvements that foreign direct investment unsustainable levels.
(FDI) in retail can yield.
In addition, due to availability of cheap raw
FDI in retail has been a key driver of productivity material and work force, global retailers would
growth in many economies, resulting in lower also utilize Indian goods for their international
prices and higher consumption. outlets leading to an increase in Indian exports
and improving the balance of payment position.
Large-scale foreign retailers also lead the path
of improvements in the productivity chain, Thus, it can be said that attractive Government
for wholesalers and food processors. policy on FDI in retail sector could change the
face of retail in India.

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

2. Industry Analysis
I. The Concept of Retail
Retail expansion is a portfolio game where
A perfect business model for retail in India is an optimal mix of countries, formats and
still at the evolutionary stage. AT Kearney terms operating models is the key to success.
retail expansion as a portfolio game where an
optimal mix of countries, formats and operating
models is the key to success.
The emphasis on the business-to-consumer
In this section, we analyze certain formats and format remains, which must be differentiated
models alongside thriving segments. However, from the business-to-business dealings, i.e.
the traditional unorganised formats like ‘mom wholesale.
and pop’ shops, hawkers, grocers etc., continue
Further, it is important to distinguish between
to co-exist with the modern formats of retailing.
the terms ‘retailing’ and ‘retail trading’ which
Taking a step back, the very definition of ‘retail’/ are often used interchangeably. Retail trading
’retailer’ has changed. In 2004, the High Court of is a subset of retailing (which is a far broader
Delhi defined the term ‘retail’ as a sale for final term), and foresees the buying and selling
consumption in contrast to a sale for further sale of goods to retail consumers. The FDI Policy
or processing (i.e. wholesale).4 contains conditions on foreign investment in
retail trading and not retailing. Entities selling
However, the traditional definition of a retail
goods to retail consumers by undertaking
shop referred to business premises where goods
manufacturing / contract manufacturing or
are sold to the public, or services are provided to
under franchise and license agreements are said
the public, or to which the public is invited to
to be engaged in retailing and not retail trading.
negotiate for the supply of services. Due to the
Examples of entities engaged in retailing in
emergence of e-commerce and m-commerce the
India include Hindustan Unilever Limited &
physical/territorial component of the definition
McDonald’s.
no longer holds true.
Such retailers manage to surpass the barrier
of direct personal contact and reach out to the
II. Formats
public via alternative media. While customers
In modern retail, a key strategic choice is the
place orders online, the delivery takes place
format; retailers are coming up with various
elsewhere, most likely at their doorsteps.
innovative formats to provide an edge to their
Interestingly, judicial decisions on ‘retail’ always
products and services. Retailers experiment
provided scope for such broad construction,
with a variety of formats, from discount stores
indicating that delivery and sale need not be
to supermarkets to hypermarkets to specialty
simultaneous or occurring at the same place.
chains etc.
The table below explains some popular formats
used in the retail sector:

4. Association of Traders of Maharashtra v. Union of India, 2005 (79)

DRJ 426.

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 Provided upon request only

Popular formats Meaning

Big box stores Large stand-alone store with varying market niches.
Category killer A large retail chain store that is dominant in its product category. The
store generally offers an extensive selection of merchandise at prices
so low that smaller stores cannot compete.
Chain store One of a number of retail stores under the same ownership and
dealing in the same merchandise.
Co-operative Any organization that is owned and operated by all of its members for
their mutual benefit.
Hardline A departmental store or product line primarily consisting of
merchandise such as hardware, housewares, automotive, electronics,
sports goods, health and beauty aids or toys.
Softline A departmental store or product line primarily consisting of
merchandise such as clothing, footwear, linens and towels.
Online retailers A retailer selling its products via online platforms, (i) either owned and
/ or operated itself or (ii) that are marketplace platforms provided by
third parties.

A. Formats popular in India ii. Department Store

A department store is a retail store offering
i. Hypermarkets, supermarkets a wide range of consumer goods which
and malls allows customers to choose between multiple
merchandise lines, at variable price points.
Hypermarts/supermarkets are large self-
India has number of departmental stores
servicing outlets offering products from
popular ones being Shoppers Stop, Lifestyle,
a variety of categories. In 2001, Pantaloon
Westlife, which sell a variety of products,
Retail launched country’s first hypermarket:
including clothing, furniture, home appliances,
‘Big Bazaar’. Hypermarkets turn out to be
toys, cosmetics etc. The retail space demand is
the most recommended format for Indian
expected to increase at the rate of 81 percent to
retail sector, according to various reports.
7.8 million square feet in 2018.6
In fact, Pantaloon Retail is the leader in the
hypermarket industry, with 259 Big Bazaar Interestingly, in many such department stores
stores and online franchisees. Aditya Birla we also see a store-within-a-store. A store-within-
Retail – More Supermarkets are leading in the a-store is a popular American retail format
supermarket segment with 523 stores in India. under which a retailer enters into an agreement
Supermarkets are said to have totaled 8500 in to rent a part of the retail space to be used by
2016 from merely 500 in 2006.5 Malls are the a different company to run another,
biggest form of organized retail in India, which independent store. Popular examples of this
offers customers a mix of all types of products in India are Vijay Sales, Crosswords.
and services including entertainment (cinema
and gaming) and food under one single roof.

5. https://www.ibef.org/download/Retail-June-20181.pdf. Last 6. https://www.ibef.org/download/Retail-June-20181.pdf. Last

accessed: June 15, 2018 accessed: June 15, 2018.

4 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

iii.Specialty stores and category growing in popularity. This is the most preferred
killers since it provides a ‘click n buy’ method. Also the
e-retailers provide facilities such as e-payment,
Specialty stores are retail chains dealing in specific home delivery, and gift option. Many companies
categories and provide a large variety. Mobile find e-commerce more profitable than resorting
stores can be an example of specialty store. to traditional forms of advertising.
Category killers are specialty stores that offer The acceptance of internet coupled with the
a variety of product categories. They are known increasing confidence of the internet users to
as ‘category killers’ since they focus on specific purchase online has made India an important
categories, such as electronics and sporting center for the growth and development of the
goods. They are also known as Multi Brand e-commerce sector. In particular, e-commerce
Outlets or MBO’s. Vijay Sales can be an example presents one of the greatest opportunities in
of category killer. the retail sector since it shifts from brick and
mortar establishments to virtual shops which
with low operating costs.
iv. Other formats
Global and local e-commerce retailers have
Traditionally, India has been familiar with
launched websites that offer Indian consumers
departmental stores and discount stores.
wide range of products such as apparel,
However, with increased urbanisation and
electronics, baby products, etc. Also, recently we
use of technology, several new formats have
have seen huge FDI inflows and consolidation
evolved with passage of time. For example:
activity in the e-commerce space in India.
i. Gas stations are providing amenities in Given the regulatory framework in India, most
the form of convenience stores, automated e-commerce retailers could be seen to shift to
teller machine (ATM), food courts and the marketplace model of business wherein the
pharmacies appearing in many outlets. e-commerce entity merely acts as a facilitator
between the buyer and seller and only provides
ii. Vending machine, almost always identified
for a platform where the consumer meets the
with Japan’s retail formats, is a relatively
seller. Given the recent FDI relaxations, the
new entrant to India and usage will rise
Indian e-commerce market could see more
with changing consumer habits and
retailers adopting this business model.
lifestyle.
For detail understanding of the E-commerce
iii. Along with the modern retail formats,
in India, you may refer to our research paper
the non-store retailing channels are
on this subject.
also witnessing action. Online retail is
estimated to reach USD 60 billion by
2020.7 Post demonetization in India,
vi. M-commerce
consumers have seemingly become Mobile commerce is a sub–set of E-commerce.
more comfortable using online services. The selling and buying of goods and services
through mobile devices and smart phones is
referred as M-commerce. The advantage of
v. E- commerce m-commerce is its personalization, flexibility,
Electronic commerce commonly known as and distribution. It also promises exceptional
E-commerce is a more convenient way for business market potential, greater efficiency
buying and selling of products or services and higher productivity. With the initiation of
through the electronic medium which is mobile internet services the retail industry is
also relieved as it provides easy mobile payment
options. But as a security concern, there are
7. https://www.ibef.org/download/Retail-June-20181.pdf. Last certain banking regulations which are deterring
accessed: June 15, 2018. the growth of m-commerce in India. Most of

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 Provided upon request only

the E-commerce players like Flipkart, Amazon etc. have dedicated mobile apps. With the increase in
digital banking and payments penetration in India and the Unified Payments Interface8 platform by
the Indian Government, m-commerce has grown considerably.

Examples of various formats

Format Retailer
Supermarket Big Bazaar / More / HyperCity / Food World
Hypermarket D-Mart /Star Bazaar/ Spencer’s / Spar
E-commerce Flipkart / Snapdeal / Amazon
Small fashion stores Fabindia
Cash and carry Metro / Walmart
Large Electronic Store Croma / E-zone / Vijay Sales

III. Segment-wise activity

A. Food and grocery retail

Food and grocery retail in India exceed USD 294 billion representing 16 percent of India’s GDP.
By 2020, food and grocery segment is estimated to constitute 66 percent of the total revenue in the
Indian retail sector.9
Hence, a huge opportunity lies ahead as this segment is poised for a significant growth in the years to
come.

Leading brands
Indian International
Food Bazaar, Nature’s Basket, Big Basket, Metro /Walmart
Reliance Fresh, Grofers

B. Apparel and footwear retail

This sector has been aligning itself with global trends with retailing companies like Shoppers’ Stop
and Crossroads entering the sector. While China is ranked at the top for growth opportunities in
this segment, India figures as one among the top ten.10 India has the edge over the markets in the US,
Europe and Japan, with a GDP growth rate of 7 percent.11 Indian conglomerates like Tata and Reliance
have also forayed into these segments. Further, this segment also witnessed increasing activity in
terms of joint ventures. For example, the Los Angeles-based Forever 21 recently formed a joint venture

8. Unified Payments Interface (UPI) is an instant payment system developed by the National Payments Corporation of India (NPCI), an
RBI regulated entity. UPI is built over the IMPS infrastructure and allows you to instantly transfer money between any two parties’
bank accounts.
9. https://www.indiaretailing.com/2018/02/13/food/food-grocery/food-retailing-india-way-forward/. Last accessed: June 16, 2018.
10. Supra note 4.
11. https://www.indiaretailing.com/2017/10/15/fashion/indian-fashion-apparel-market-2016-beyond/. Last accessed: June 16, 2018.

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

with DLF, popular Indian real estate developer. This sector has also witnessed the entry of foreign retail
brands such as H&M, Massimo Dutti, etc. in recent times.

Leading brands
Indian International
Provogue, Wills Lifestyle Reliance Footprint, Zara, Mango, Marks & Spencer, Charles & Keith,
Woodland Hush Puppies, H&M, Massimo Dutti

C. Pharma retail
Pharma retailing in India is said to have a market size of USD 467 billion.12 In 2015, the initial
public offer (IPO) of Dr Lal PathLabs, one of India’s largest diagnostic chains, received bids for an
overwhelming total of 27.12 crore shares.13 A few corporates who have already forayed into this
segment include Dr. Morepen (with Lifespring and Tango), Medicine Shoppe, Apollo Pharmacies,
98.4 from Global Healthline Pvt Ltd. and CRS Health.

D. Books and Music Retail

The gifting gesture in India has reached a new sensation with e-commerce portals providing a platform
for consumers to purchase a wide variety of goods such as books and music CDs. However, book-
music-movie retailing in India suffered significantly with the introduction of digital music, movies
and books through platforms such as Kindle and iTunes.
Accordingly, many players have reduced their foot print in this segment.

Leading brands
Indian International
Crosswords, Relay W H Smith

E. Consumer Durables Retail

The consumer durables market can be segmented into consumer electronics comprising of television
sets, audio systems, VCD players and others; and appliances like washing machines, microwave and air
conditioners. There are various domestic and foreign players who have entered this segment in the last
couple of years.
The home appliance and consumer electronics market is expected to grow by 10 percent on a
compounded annual growth rate till 2022.14

12. https://www.indianretailer.com/magazine/2006/october/Pharmacy-retail-attracting-robust-returns.m5-2-5/. Last accessed: June 16,

2018.
13. http://www.business-standard.com/article/news-cm/dr-lal-pathlabs-ipo-subscribed-33-41-times-115121100234_1.html. Last accessed:
August 14, 2018.
14. https://economictimes.indiatimes.com/industry/cons-products/electronics/home-appliance-and-consumer-electronics-market-likely-
to-grow-by-10/articleshow/61560886.cms. Last accessed: June 16, 2018.

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 Provided upon request only

Leading brands
Indian International
Croma, e-Zone Samsung, Sony

For the purpose of this paper, we have

In addition to the above, use of digital and
summarized the factors and the challenges that
social media is revolutionizing the ways people
affect the demand and supply of the retail sector.
interact and communicate with each other.

IV. Demand in the retail V. Opportunities &

sector Challenges
India is the one of the fastest growing major
consumer market in the world. In the past few A. Workforce
years the whole concept of shopping has been
altered in terms of format and consumer buying The retail sector in India is the second largest
behavior. With the increasing urbanization, the employer after railways. India’s retail sector will
Indian consumer is emerging as more trend need a workforce of around 56 million and will
and brand conscious. There has also been a have one of the highest incremental human
shift from price considerations to designs and resource requirements of 17.35 million till
quality as there is a greater focus on looking and 2022.17 Although, one challenge for an aspiring
feeling good (apparel as well as fitness). At the foreign retailer is to re-train the workforce
same time, the Indian consumer is not beguiled according to international standards and
by retail products which are high on price but practices that are being bought in.
commensurately low on value or functionality.
The Indian consumer is also witnessing some B. Infrastructure & Supply Chain
changes in its demographics with a large
working population being in the age group of Lack of adequate infrastructure with respect
24-35 years. During the past few years, there to roads, electricity, cold chains and ports has
has been an increase in the number of nuclear further led to the impediment of a pan-India
families, an increase in working women and network of suppliers. Long intermediation
emerging opportunities in the service sector chains would increase the costs by 15 percent.
which has been the key growth driver of the The various initiatives that retailers have started
organized retail sector in India. Consumer to optimize regarding their entire supply chain
spending is said to increase to USD 4 trillion by include workforce optimization, inventory
2025 with maximum spending likely to occur in planning and revamping of technological
food, housing, consumer durables and transport infrastructure.18 A study commissioned by
and communication sectors.15 the World Bank indicates how the weak
storage chain does irreparable damage to
India stands first among 63 countries in the
India’s exports.19 Of late, India’s warehousing
global consumer confidence with a scope of 136
and logistics sector has also attracted massive
points for the quarter ending December 2016.16

17. https://retail.economictimes.indiatimes.com/news/
industry/-indian-retail-industry-from-potential-to-perfor-
mance/59141590. Last accessed: June 16, 2018.
15. https://www.ibef.org/industry/indian-consumer-market.aspx. 18. Issues Monitor, July 2011.
Last accessed: June 16, 2018.
19. Mattoo, A. D.Mishra and A. Narain, From competition at home to
16. Ibid competing abroad: A case study of India’s horticulture, 2007.

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

investment from not only foreign retail D. Managing Shrinkage

companies but also from private equity firms.
Industry reports claim that the sector received In India, shrinkage is the highest in the world,
INR 14.38 billion (approx. USD 205 million) in ranging around 2.38 percent of the total
investment through two major deals in 2015 sales.21 Therefore, dealing with shrinkage and
alone. The allowance of 100 percent FDI in shoplifters continue to trouble foreign players
warehousing and food storage facilities under aspiring to enter India.
the automatic route, alongside tax concessions,
has brought this sector under the foreign PE
investment radar.20
E. Regulatory Challenges
Government restrictions on FDI lead to an
C. Real Estate absence of foreign players resulting into
limited exposure to best practices, an aspect
Availability of real estate at the right prices that has been discussed in detail below, under
and at the right location remains to be the key “Regulatory Regime”. On the tax front, even
concern for growth of the retail sector. Further, though the government is attempting to
lack of clear ownership titles and high stamp implement uniform goods and service tax
duty has resulted in a disorganized nature of across the nation, delay in its rollout and
transactions. implementation thereafter is leading to
increased costs and complexities in establishing
an effective distribution network.

20. ‘Indian Logistics – Taking Giant Leaps Forward’, JLL Report,

August 2015. http://www.jll.co.in/india/en-gb/Research/ 21. Information Memorandum, Future Retail. http://www.
Indian_logistics_Taking_giant_leaps_forward.pdf futureretail.in/pdf/Information_Memorandum.pdf

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2. Regulatory Regime
From the very wide range of retail segments sector, a single-window clearance system to
that we have taken a look at, evidently, retail streamline license processes associated with
sector cuts across various industries and business establishing retail stores, tax and investment
models. As a consequence, there is a higher incentives, among other things.22
possibility of regulatory overlap. While general
While countries like Spain, Denmark and
corporate, tax, commercial laws and laws related
Bhutan have experimented with a national
to intellectual property, trade and employment
legislation to regulate retail trading, the general
laws remain applicable to the retail industry, as
trend has been to leave regulation of retail
in the case of any other industry, some regulatory
trading to provincial/regional authorities, as has
aspects might get triggered on account of the
been done in the UK and Australia.
format or business model that the investor
chooses to adopt, m-commerce, for instance. One can draw a pattern of retail regulation
from most jurisdictions including India: retail
outlets have been brought within the purview
I. Regulatory Patterns Across of other generic legislations that deal with taxes,
the Globe pricing, weights and measures, shopping hours,
marketing/advertising practices, licensing,
As we shall see, there have been proposals for employment etc. Given the complexity of retail
setting up a National Retail Authority, which structures and diversity of its segments, this
are yet to attain any momentum in the industry approach makes the most sense. Also, one might
space. With respect to unorganized retail, note that legislations that cater to the needs of
the Ministry of Housing and Urban Poverty one country cannot be replicated in another.
Alleviation has formulated a National Policy For example, some countries have ‘blue laws’,
for Urban Street Vendors. However, at the i.e. laws that deal with religious observances,
moment, there is no single regulatory authority which might be entirely inapplicable in the
that governs the organized retail sector; nor is context of other countries.
there any umbrella legislation. Under List I of
Interestingly, retail trading also provides some
Seventh Schedule of the Constitution of India,
scope for ‘private regulations’ where a powerful
Inter-State trade and commerce is a subject
retailer might want manufacturers or service
for the Parliament, the Central legislative
providers to comply with in terms of quality,
body, to enact upon. Under List II, however,
carbon footprint etc. before their products can
trade and commerce within a State is a State
be sold through that retail chain. The antitrust
subject. A regulatory framework to govern
and trade implications of such private norms
retail sector, consequently, might need the
enforced solely through the market forces,
approval of the individual States under the
is an intriguing legal issue.
Constitution. However, this position might
undergo substantial changes if the Government
pays heed to the stakeholders who demand
‘industry’ status for retail. This is hoped to
entail developing a Ministry responsible and
accountable for the growth and interests of the

22. D. Murali, Assign industry status to the retail sector, February

15, 2010 available at: http://www.thehindu.com/business/
Industry/article106925.ece

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

II. Foreign Direct Investment states that companies who engage in the activity
Regime of buying and selling by a company through
the e-commerce platform would engage only in
Business to Business (B2B) e-commerce and not
FDI in India is regulated under Foreign
in retail trading. However, provision of services
Exchange Management Act, 1999 (“FEMA”).
by e-commerce companies to retail consumers
The Department of Industrial Policy and
is not covered under this restriction.
Promotion (“DIPP”), Ministry of Commerce &
Industry, Government of India makes policy FDI Policy specifies eligible investors. A non-
pronouncements on FDI through Press Notes/ resident entity can invest in India subject to the
Press Releases which are notified by the Reserve FDI Policy. A citizen of Bangladesh or an entity
Bank of India (“RBI”) as amendments to Foreign incorporated in Bangladesh can invest only
Exchange Management (Transfer or Issue of under the Government route. Further,
Security by Persons Resident Outside India) a citizen of Pakistan or an entity incorporated in
Regulations, 2000. Pakistan can invest, only under the Government
route, in sectors/activities other than defence,
Paragraph 3.6.1 of consolidated FDI policy23
space and atomic energy. FDI Policy also
(“FDI Policy”) lays down two entry routes
details the types of instruments through
for investment: the automatic route and the
which an investor can invest into India. Issue
government/approval route. Under the latter,
of shares, fully, compulsorily and mandatorily
prior approval of the Government of India
convertible debentures and preference shares
through DIPP is required. After the abolition
are counted as FDI. The inward remittance
of the Foreign Investment Promotion Board,
received by an Indian company by way of
applications for foreign investment in retail
issuance of depository receipts and foreign
sector would directly lie before the DIPP.
currency convertible bonds is also counted as
Investments can be made by non-residents in
FDI. Subject to FDI sectoral policy, non-resident
the capital of a resident entity only to the extent
investors can also invest in Indian companies
of the percentage of the total capital (sectoral
by purchasing/acquiring existing shares from
caps) as provided in the FDI Policy.
Indian shareholders or from other non-resident
Accordingly, DIPP in press notes 4 and 5 (2012 shareholders. However, if the activity of the
Series) inserted/ modified paragraphs 6.2.16.4 Indian company falls outside the automatic
and 6.2.16.5 of FDI Policy allowing FDI in single route (i.e. in cases where a prior approval from
brand product retail trading (100 percent) the Government agencies or RBI is required) as
and multi brand retail trading (51 percent) multi brand retail trading does, such transfer
respectively with prior approval of DIPP subject requires RBI approval.
to compliance of certain conditions. This has
A general permission is granted for issue of
now been liberalised by the DIPP in January
equity shares/preference shares against lump
2018 whereby it allowed FDI in SBRT up to 100
sum technical knowhow fee, royalty, subject to
percent under the automatic route.24 Further,
entry route, sectoral cap and pricing guidelines
paragraph 6.2 of the FDI Policy states FDI into
and compliance with applicable tax laws.
cash & carry wholesale trading is allowed
up to 100 percent under automatic route As far as the entities into which FDI can be
provided that certain conditions are satisfied. made, non-resident investors enjoy a choice
Additionally, Paragraph 6.2.16.2.1 of FDI Policy from among companies, partnership firms/
proprietary concerns/ limited liability
partnership and Venture Capital Funds (VCFs)
23. Consolidated FDI Policy 2017 which came into effect from
subject to adherence to conditions of FDI Policy.
August 28, 2017
For example: 100 percent foreign investment
24. Our analysis of this press note is available here: http://www.
nishithdesai.com/information/news-storage/news-details/ in limited liability partnership is allowed
article/fdi-reforms-in-india-government-committed-to- under automatic route in sectors where no
wards-ease-doing-business.html

© Nishith Desai Associates 2018 11

 Provided upon request only

Government approval is required and is not its early and undeveloped stage (particularly
subject to any sector specific conditionalities. the domestic organized retail segment) it is not
Accordingly, foreign investment is currently not in a position to compete with large players.
possible in limited liability partnership engaged As a result, the Government policy has largely
in retail trading. There are guidelines laid down been to protect agriculturist and small retailers
in FDI Policy on the calculation of total foreign and therefore has discouraged entry of bigger
investment i.e. direct and indirect foreign retailers. Thus, participation of foreign investors
investment in India. in the retail sector was prohibited.
A snapshot of the existing FDI limits in the
trading sector under the FDI Policy is as follows:

Sector (Other than Food) FDI/Sectoral Cap

Wholesale / Wholesale Cash & Carry Trading Up to 100% [no Government approval]
Single Brand Retail Trading Up to 100% [no Government approval]
Multi Brand Retail Trading Up to 51% [with Government approval]

A. FDI in retail sector B. FDI in food retailing

India entered into the World Trade The FDI Policy treats food retail different from
Organisation’s General Agreement on Trade other retailing provisions (whether SBRT or
in Services (GATS), in January 1995 pursuant MBRT). Retailing of food products produced
to the Uruguay Round negotiations. Each / manufactured in India (whether SBRT or
WTO Member is required to have a schedule MBRT) including via e-commerce requires prior
of specific commitments. It is a document Government approval. Although not expressly
which identifies the services sectors, sub- mentioned, it may be inferred that retailing
sectors or activities which are subject to market of imported food products is not permitted by
access and national treatment obligations entities in India having foreign investment.
and any limitations attached to them.25 One
of the standard services to the GATS includes
distribution services (i.e. commission agent,
C. Wholesale cash and carry
wholesale trade services, retailing services and
According to the FDI Policy, whether a
franchising), As per India’s Revised Offer at
transaction is wholesale or retail would
WTO on August 24, 2005, India has offered to
depend on the type of customers to whom the
undertake extensive commitments in a number
sale is made and not the size and volume of
of new sectors/sub-sectors such as distribution
sales. Wholesale trading would mean the sale
services in the areas of commission agents and
of goods to retailers, industrial, commercial,
wholesale trade services.26 As a backdrop of this,
other professional business users or to other
India is gradually opening up the retail trade
wholesalers, but not for personal consumption.
sector to foreign investment. Traditionally, the
retail sector in India was considered to be a The consolidated FDI policy released for the
sensitive sector especially due to factors, such as first time in 2009 introduced guidelines that
(i) the employment it generates and (ii) being in mandate relevant permits and licenses to be
obtained.

25. Supra note 18.

26. India’s Revised Offer dated August 24, 2005 available at:
http://commerce.nic.in/trade/faqs_gats.pdf

12 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

It also lists a number of ‘valid business It is important to know the objectives the
customers’ with whom wholesale transactions Government had in mind while allowing
can be entered into (besides the Government). foreign investment in SBRT will be helpful for
These entities should be either: a) holders of prospective investors at the stage of formulating
sales tax/ VAT registration/service tax/excise their FDI proposals. The objectives were:
duty registration; b) holders of trade licenses
a. attracting investments in production and
under Shops and Establishment Act, issued by
marketing;
the relevant governmental authority, indicating
that the purchaser is engaged in a business b. improving the availability of such goods
involving commercial activity; c) holders of for the consumer;
permits/license for undertaking retail trade (like
c. encouraging increased sourcing of goods
tehbazari and similar license for hawkers) from
from India;
the relevant authority; or d) institutions having
a certificate of incorporation or registration d. enhancing competitiveness of Indian enter-
as a society or registration as public trust for prises through access to global designs,
their self-consumption. technologies and management practices.
Full records indicating all the details of FDI in SBRT is subject to following conditions:
such sales like name of entity, kind of entity,
a. Products to be sold should be of a ‘Single
registration/license/permit etc. number, amount
Brand’ only.
of sale etc. should be maintained on a day to day
basis. It is expressly clarified that a wholesale b. Products should be sold under the same
trader cannot open retail outlets, whereby sales brand internationally i.e. products should
will be made to the customer directly. be sold under the same brand in one or
more countries other than India.
Under the existing FDI Policy, wholesale deals
would be permitted among companies of the c. ‘Single Brand’ product-retailing would
same group. However, such wholesale trade cover only products which are branded
to group companies taken together could not during manufacturing.
exceed 25 percent of the total turnover of the
Any non-resident entity / entities can
wholesale venture. For the purposes of the above,
undertake SBRT in the country for
a group company as defined under the DIPP Press
a specific brand directly or through legally
Note (2 0f 2013) dated 3 June, 2013 means- two
tenable agreement with the brand owner.
or more enterprises, which directly or indirectly
Under the FDI Policy issued by the DIPP
are in a position to exercise 26 percent or more
on September 30, 2011, only the owner of
voting rights in the other enterprise, or can
the brand was permitted to invest in SBRT.
appoint more than 50 percent of members of the
This condition was seen to be restrictive
board of directors in the other enterprise.
as it ignored the IP holding structures
prevalent globally. The condition was
D. Single-Brand Product Retail then modified to permit only one foreign
Trading (SBRT) investor whether owner of the brand
directly or a licensee / franchisee / sub-
licensee to invest in SBRT in the country,
FDI up to 100 percent in SBRT is allowed subject
for the specific brand for which approval
to certain conditions. No Government approval
is being sought through a legally tenable
is required for FDI in SBRT.
agreement with the brand owner. The
onus for ensuring compliance with this
condition rested with the Indian entity
carrying out SBRT in India.

© Nishith Desai Associates 2018 13

 Provided upon request only

d. Moreover, the government also may relax 50 million (approx. USD 712,600) and INR
sourcing norms for entities undertaking 100 million (approx. USD 1.4 million).
SBRT of products having ‘state-of-art’ and One of the changes also introduced in
‘cutting-edge’ technology and where local the FDI reforms is on this local sourcing
sourcing is not possible. requirement, which provides the retail
This condition was still seen as restrictive trading entity having FDI beyond
and with the recent change, the requirement 51 percent with an option to set off its
has been significantly diluted by allowing incremental sourcing of goods from
one or more non-resident entities to India for its global operations, against
undertake SBRT of a specific brand provided the mandatory 30 percent domestic
they are owner of the brand or they have sourcing of goods requirement. Goods
some agreement with the brand owner for sourced globally from India by the group
the specific brand. This will be helpful for companies of the retail trading entity
structures where for example, more than would also be considered for the purpose
one foreign entity has been provided with of availing this set off against the 30
a license for a territory or where the owner percent local sourcing requirement.
and a licensee both invest. g. Retail trading, in any form, by means of
e-commerce, would not be permissible,
e. Furthermore, entities operating through
for companies with FDI, engaged in the
brick and mortar stores are permitted
activity of SBRT.
to undertake retail trading through
e-commerce as well.
E. Multi- Brand Product Retail
f. In respect of proposals involving FDI Trading (MBRT)
beyond 51 percent, mandatory sourcing
of at least 30 percent of the value of goods
FDI up to 51 percent in MBRT is allowed
purchased, must be done from India,
under the Government route i.e. with the prior
preferably from MSMEs,27 village and
approval of the DIPP subject to compliance of
cottage industries, artisans and craftsmen,
certain conditions.28 The current policy does not
in all sectors. The local procurement
define the term ‘multi brand’. MBRT generally
requirement would have to be met as an
implies the sale of multiple brands to retail
average of five years’ total value of the
customers for personal consumption.
goods purchased, beginning April 1 of the
year during which the first tranche of FDI The proposal to allow FDI in MBRT dates back
is received. Thereafter, this requirement is to July 2010, when DIPP first introduced its
to be complied on an annual basis. MSMEs’ discussion paper (“Discussion paper on FDI in
should be as defined and described under: retail”) on allowing FDI in MBRT. The proposal
The Micro, Small and Medium Enterprises of allowing FDI in MBRT was approved by the
Development Act, 2006. ‘Micro’ enterprises Cabinet in November 2011. However, due to
are those that have total investment in adverse political backlash, the proposal was kept
plant and machinery less than INR 2.5 on hold.
million (approx. USD 35,630); Small
There was tremendous international pressure
enterprises having between INR 2.5
on the Government to open up the multi-
million (approx. USD 35,630) and INR
brand retails sector for FDI, as well as pressure
50 million (approx. USD 712,600); and
domestically to end the stalemate of policy
‘Medium’ enterprises having between INR
inaction. The Government has risen from its

27. The word MSMEs is not defined in FDI Policy. However, the
same has also being used in provisions relating to FDI in 28. Notified by DIPP by way of Press Note 5 (2012 Series) dated
MBRT. September 20, 2012.

14 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

state of policy inaction and tried to establish a reformist image by allowing FDI in MBRT.
As a result, the DIPP by way of Press Note 5 (2012 Series) allowed 51 percent FDI in MBRT under
Government approval route subject to the following conditions:

ƒRetail sales outlets may be set up in those States which have agreed or agree in future to allow
FDI in MBRT

Under List II of Seventh Schedule of the Constitution of India, trade and commerce within a State is a State
subject. A regulatory framework governing retail sector, consequently, needs the approval of States under
the Constitution.
States that have enabled FDI in MBRT:

Name of State/Union Territory Population 36 Geographical area (in

(Cities in which outlets may be opened) square kilometres)
Assam 31,205,576 78,438
Andhra Pradesh (Vishakhapatnam and 49,386,799 162,970
Vijayawada)
Delhi 16,787,941 1,484
Haryana (Faridabad) 25,353,081 44,212
Himachal Pradesh 6,864,602 55,673
Jammu and Kashmir (Srinagar) 12,541,302 222,236
Karnataka (Bengaluru) 61,130,704 191,791
Maharashtra (Mumbai, Pune, Nagpur, Nashik, 112,372,972 307,713
Vasai-Virar, Aurangabad)
Manipur 2,855,794 22,327
Rajasthan (Jaipur, Jodhpur, Kota) 68,548,437 342,239

© Nishith Desai Associates 2018 15

 Provided upon request only

Uttarakhand 10,086,292 53,483

Daman & Diu 242,911 102
Dadra and Nagar Haveli 342,853 491
29

Further, it has been recently clarified by DIPP this condition was amended by way of Press
that if the foreign investor approaches a State Note 5 (2013 Series).30
Government not included in the list of states
While, the previous restriction to Tier 1 and Tier
supporting FDI in MBRT, consent from the State
2 cities seemed reasonable given the sensitivity
Government would be sufficient, and a suitable
around the sector and prevalent undeveloped
amendment to the policy will be issued by the
/ unorganised retail segment in small towns/
Central Government.
villages which would be unable to compete with
Accordingly, it would be the prerogative large players, the recent change to allow State
of the State Governments to decide whether Governments to determine the cities in which
and where a multi-brand retailer, with FDI, retail outlets can be set up will also ensure that
is permitted to establish its sales outlets within every State Government has the discretion
the State. The establishment of the retail sales to choose the cities in which multi-brand
outlets will have to be in compliance with retail outlets are set up and provide a sense of
applicable State laws/ regulations, such as the uniformity amongst the States.
Shops and Establishments Act etc. Additionally,
ƒMinimum amount to be brought in, as FDI,
the companies engaged in MBRT will also
by the foreign investor, would be USD 100
have to comply with local zoning regulations,
million.
warehousing requirements, access, traffic,
parking and other logistics as prescribed by State The foreign investor has to bring in a minimum
Governments from time to time. investment of USD 100 million in an entity
engaged in MBRT.
With this restriction, each investor will have to
comply with policy on FDI at both Centre and Retail sector being a capital-intensive sector, the
State levels. Depending on State policy on MBRT, requirement for minimum capitalisation appears
the investors may or may not be permitted to logical. This will attract serious investors and
invest in those States. Interestingly this seems allow the government to study the benefit such
to be the first time that discretion on whether investment will have on the Indian economy.
to permit FDI in a sector or not has been left to
ƒ50 percent of total FDI brought in to be
the States.
invested in b
` ackend infrastructure` within
ƒRetail sales locations may be set up only in three years
certain cities
Considering the need for investment in
The reach of retail sales outlets of foreign multi back end infrastructure, at least 50 percent
brand retail trader will be limited to only those of the USD 100 million i.e. total FDI brought
cities with a population of more than 10 lakh as in in the first tranche 31 shall be invested
per the 2011 Census or any other cities as per the in ‘back-end infrastructure’ within three
decision of the respective State Governments years. Any subsequent investment in backend
(including an area of 10 kilometers around the infrastructure would be made by the MBRT
municipal/urban agglomeration limits of such retailer as needed, depending upon his business
cities). Previously, the FDI Policy provided that requirements. Investment in ‘back-end
retail outlets could only be set up in cities with
a minimum population of 10 lakhs, however
30. As clarified by Press Note 5 (2013 series), available at: http://
dipp.nic.in/sites/default/files/pn5_2013_1.pdf
31. As clarified by Press Note 5 (2013 series), available at: http://
29. As per the 2011 India census dipp.nic.in/sites/default/files/pn5_2013_1.pdf

16 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

infrastructure’ will include capital expenditure This procurement requirement would have
on all activities such as investment made to be met, in the first instance, as an average
towards processing, manufacturing, distribution, of five years’ total value of the manufactured/
design improvement, quality control, packaging, processed products purchased, beginning April 1
logistics, storage, warehouse, agriculture of the year during which the first tranche of FDI
market produce infrastructure etc. Expenditure is received. Thereafter, it would have to be met
incurred on front-end units, land cost and on an annual basis.
rentals will not be reckoned for purposes of
In case of MBRT, the 30 percent sourcing
backend investment.
requirement is to be calculated on the purchase
The Indian retail sector is lacking adequate of manufactured and processed products and
infrastructure and immersed in increased cost sourcing from agricultural co-operatives and
and wastage due to disrupted supply chains farmers co-operatives would also be considered.
and middlemen. To address this problem, The mandatory local sourcing requirement in
the requirement for investment in back end case of MBRT is aimed to provide a boost to
infrastructure within a three year timeframe small industries. It may be easier for multi brand
has been introduced. Compliance for the FDI retailers to meet this condition since they have
amount invested in back-end infrastructure a large spectrum of goods to offer.
to be self-certified and checked by statutory
ƒRetail trading, in any form, by means of
auditors and submitted to the DIPP in the
e-commerce, would not be permissible, for
prescribed form.
companies with FDI, engaged in the activ-
ƒ30 percent mandatory local sourcing ity of MBRT.
requirement
Company which is recipient of FDI has to
Similar to the requirement of mandatory local ensure compliance of the conditions relating
sourcing as applicable in SBRT (prior to press to minimum USD 100 million investment,
note 4 of 2012), at least 30 percent of the value investment in back- end infrastructure and
of procurement of manufactured/ processed mandatory local procurement requirement
products purchased shall be sourced locally. which could be verified, as and when required.
Such sourcing was earlier limited to ‘small Further, the investors shall maintain accounts,
industries’ which have a total investment in plant duly certified by statutory auditors.
and machinery not exceeding USD 1 million.
However, the Indian Ministry of Finance has
This requirement has now been amended via
proposed to reduce the corporate tax rate from
Press Note 5 (2013 Series)32 and investors are
30 percent to 25 percent over a period of four
permitted to source such products from micro,
years with a view to encourage foreign investors
small and medium industries which have
to ‘Make in India’. Alongside, the ministry
a total investment in plant and machinery not
has also made a move to reduce the rates of
exceeding USD 2 million. The amendment
withholding taxes for royalties and fees for
further clarifies that such ‘small industry’ status
technical services provided by non-residents
is only considered at the time of first engagement
to 10 percent which would further incentivize
and that such industry will continue to qualify
foreign companies to set up manufacturing
as a ‘small industry’ for this purpose even if it
bases in India. It should be noted that FDI in
outgrows the said investment of USD 2 million.
B2C e-commerce is permitted in circumstances
Compliance with this condition will have to
where a manufacturer is permitted to sell its
be self-certified by the company and then cross-
single-brand products manufactured in India
checked as and when required.
through e-commerce retail.

32. Press Note 5 of 2013, available at: http://dipp.nic.in/English/

acts_rules/Press_Notes/pn5_2013.pdf.

© Nishith Desai Associates 2018 17

 Provided upon request only

Applications for MBRT would be have In effect, a foreign investor will have to be
to be made to DIPP. DIPP will determine mindful of the local rules and regulations of
whether the proposed investment satisfies each State before finalizing the transaction
the notified guidelines and after being satisfied structure / business model, especially when the
will forward the application to be considered investor intends to set up outlets in all the States.
by the FIPB for approval. Further, for the existing entities operating across
India, it would be difficult to get FDI in entity
Further, DIPP came out with certain
without restructuring of its operations.
clarifications on queries raised by prospective
investors with respect to the precision on MBRT
under the FDI Policy.33 ii. India’s commitments under
international investment
F. Challenges moving forward agreements / treaties
India is a signatory to various international
While the policy framework in relation
trade agreements / treaties like the General
to FDI in MBRT is now put in place, the
Agreement on Trade in Services, Trade Related
implementation of this policy framework is
Investment Measures, bilateral investment
bound to have certain challenges. Some of
protection agreements 34, and comprehensive
which include:
economic cooperation agreements in the field
of trade and economic affairs signed to promote
i. Implementation at State level investment inflow. While the Government in
Retail is the only sector where that FDI its press release 35 has categorically concluded
policy is introduced as an enabling policy that the policy framework does not violate
and implementation of the same is left to the any commitments or obligations arising
discretion of the State Governments / Union out of India’s international agreements, the
Territories. This draws support from the fact that introduction of FDI in SBRT and MBRT with
‘trade and commerce within the State’ is a State conditions such as domestic sourcing and state
subject under the Constitution of India. Such wise implementation has raised a few questions
a policy may give unrestricted powers to the with respect to India’s commitments under
State Government / Union Territories to impose these treaties and agreements.
conditions in addition to those prescribed by the
DIPP. State level regulations could also lead to
an inconsistent policy framework which will
iii. Options available with investors
need to be carefully understood and followed if the Government retroactively
by potential investors. There is also the risk of changes its policy in the future
a State Government changing its policy on
While the Government has the right to enact,
MBRT and reversing earlier decisions, especially
modify or repeal a law/policy at its own
in the event of a change in political power as
discretion in its sovereign capacity, a foreign
this scenario has not been construed by the DIPP
investor expects the host country to act in
in the Press Note.
a consistent manner, so that it may know

34. India has signed bilateral investment protection

agreements with 61 countries, out of which 52 are
33. You can refer to our analysis on these clarification in our
already in force and the rest are yet to be entered into
hotline titled “Clarification on FDI in Multi Brand Retail
force as per: http://investmentpolicyhub.unctad.org/IIA/
Trading: As Restrictive as it may get”, available at: http://
CountryBits/96#iiaInnerMenu
www.nishithdesai.com/information/research-and-articles/
nda-hotline/nda-hotline-single-view/article/clarifications-on- 35. Press release of Ministry of Commerce and Industry
fdi-in-multi-brand-retail-trading-as-restrictive-as-it-may-get. on “FDI Policy on Multi Brand Retail Trading and India’s
html?no_cache=1&cHash=34677b5a0db512a7c4b- Commitments under International Investment Agreements”
0b804e8e2450b. dated September 18, 2012.

18 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

beforehand any and all rules and regulations G. E-commerce

that will govern its investments and to be able
to plan its investment and comply with such Currently, 100 percent FDI is allowed under
regulations accordingly. automatic route (no approval required) in
companies engaged in Business to Business
The foreign investor also expects the host
(B2B) e-commerce and erstwhile restrictions on
country to act consistently, without arbitrarily
FDI in domestic trading were also applicable
revoking any preexisting decisions or permits
to e-commerce as well. The DIPP Press Notes 4
issued by the country that were relied upon by
and 5 (2012 Series) categorically state that retail
the investor to assume its commitments as well
trading, in any form, by means of e-commerce,
as plan and launch its commercial and business
would not be permissible, for companies with
activities. Stability and predictability of legal
FDI, engaged in SBRT or MBRT. However, with
and business framework is an essential element
the release of Press note 3 (2016 Series), the DIPP
to ensure fair and equitable treatment towards
has amended the guidelines applicable for FDI
the foreign investor. Evisceration of regulations
on e-commerce. An important introduction has
in future with regards to foreign investment
been the allowance of 100 percent FDI under the
in multi-brand retail by Government, in
automatic route for the marketplace model of
reliance upon which the foreign investor
e-commerce while not permitting any FDI in the
invests into India could be regarded as a breach
inventory based model at all.
of international obligations taken up by
Indian under bilateral investment protection Under the existing FDI Policy:
agreements and may also attract scrutiny as to
i. ‘E-commerce’ is defined as buying and
the constitutional validity of such actions.
selling of goods and services including digital
There have been requests from the industry products over digital & electronic network.37 38
to the Government to allow 100 percent FDI
ii. An ‘e-commerce entity’ means a company
in MBRT and also FDI in B2C e-commerce in
incorporated under the Companies Act 1956
a phased manner. The Government had
or the Companies Act 2013 or a foreign
indicated that they were considering the MBRT
company covered under section 2 (42) of the
relaxation provided that the goods were sold
Companies Act, 2013 or an office, branch or
with a “Made in India” label.36
agency in India as provided in section 2 (v)
(iii) of FEMA 1999, owned or controlled by a
iv. Regulatory overlap and dealing person resident outside India and conducting
with multiple authorities the e-commerce business.39
iii. An ‘inventory based model of
The retail sector cuts across various industries
e-commerce’ means an e-commerce activity
and business models. As a consequence, there
where inventory of goods and services is
is higher scope for regulatory overlap. While
owned by e-commerce entity and is sold to the
general corporate, tax, commercial laws and
consumers directly.40
laws related to intellectual property, trade and
employment laws are uniform across industries,
state level laws and regulations like the
Agricultural Produce Market Committee Act,
local zoning regulations differ from each other
and foreign investors will have to deal with
37. Para 5.2.15.2.4(i) of the FDI Policy clarifies that “digital &
multiple regulations and authorities. electronic network will include network of computers, television
channels and any other internet application used in automated
manner such as web pages, extranets, mobiles etc.”
38. Para 5.2.15.2.2(i) of the FDI Policy.
36. http://www.thehindu.com/business/Industry/Open-multi-
39. Para 5.2.15.2.2(ii) of the FDI Policy
brand-retail-e-commerce-education-to-more-FDI-India-Inc./
article13986519.ece. Last accessed: August 14, 2018. 40. Para 5.2.15.2.2(iii) of the FDI Policy

© Nishith Desai Associates 2018 19

 Provided upon request only

iv. A ‘marketplace based model of e-commerce’ III. Other Corporate laws

means providing of an information technology
platform by an e-commerce entity on a digital &
electronic network to act as a facilitator between
A. Investment Vehicles
buyer and seller.41
Investments can be made either into
The conditions to be met by e-commerce entities unincorporated entities such as liaison
with FDI are as follows:42 office, branch office, project office, limited
liability partnership, partnership, trust or into
i. Marketplace e-commerce entities will be
incorporated entities such as a public limited
permitted to enter into transactions with sellers
or private limited company. However, this
registered on its platform on a B2B basis.
is subject to the restrictions placed by FDI
ii. E-commerce marketplaces may provide regulations discussed above. For example,
support services to sellers in respect of FDI is not allowed in trusts.
warehousing, logistics, order fulfillment, call
center, payment collection and other services.
B. Instruments
iii. E-commerce entities providing a marketplace
will not exercise ownership over the inventory FDI can be made into a number of instruments
i.e. goods purported to be sold. Such an including equity shares, compulsorily
ownership over the inventory will render the convertible preference shares and compulsorily
business into inventory based model. convertible debentures. Prospective investors
may be mindful of the fact that any optionality
iv. An e-commerce entity will not permit more
(puts, calls etc.) built into an FDI instrument is
than 25% (twenty-five percent) of the sales
viewed with suspicion by the RBI, even though
value on financial year basis affected through
the law itself does not prohibit it. When an FDI
its marketplace from one vendor or their group
instrument does not ensure lasting interest
companies.
of the investor in the target company, the
v. In marketplace models, goods / services authorities take the view that the investment
made available for sale electronically on lacks the very character of investment, and
websites should clearly provide name, therefore treat them as coming under the
address and other contact details of the external commercial borrowing (ECB) route,
seller. Post sales, delivery of goods to the to which a different set of regulations apply.
customers and customer satisfaction
Earnings out of India can be repatriated as
will be responsibility of the seller.
dividends. Dividends are paid usually as
vi. In marketplace models, payments for sale a percentage of the nominal or face value of the
may be facilitated by the e-commerce entity in share. For a foreign investor holding an equity
conformity with the guidelines of the Reserve interest, payment of dividend on equity shares
Bank of India. is a straightforward way of extracting earnings.
However, the dividend distribution tax borne by
vii. In marketplace models, any warrantee/
the company while distributing such dividend
guarantee of goods and services sold
may not necessarily qualify as a tax credit
will be responsibility of the seller.
against any direct tax payable by the foreign
viii. E-commerce entities providing marketplaces investor who receives such dividend in its
will not directly or indirectly influence the sale home jurisdiction.
price of goods or services and shall maintain
Additionally, in case a company issues
level playing field.
compulsorily convertible debentures to non-
resident investors, any interest paid by the
41. Para 5.2.15.2.2(iv) of the FDI Policy Indian company shall be subject to withholding
42. Para 5.2.15.2.4 of the FDI Policy tax reduced to the rate of tax under the relevant

20 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

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treaty. For example: when the interest is paid under Section 44AD of the Income Tax Act.
by Indian company to U.S. corporation, the Further, in cases where the gross receipts or
otherwise applicable Indian withholding tax, turnover are received through banking channels,
reduced to 15 percent under the India-U.S. a 6 percent presumptive rate of tax, instead of 8
income tax treaty. percent, is applicable.
Domestic resident companies in India are taxed
IV. Tax laws at 30 percent and at 25 percent if the turnover
or gross receipts do not exceed INR 500 million
The levy of taxes in India is a constitutional (approx. USD 285,160) (excluding surcharge
power granted to the Union Government and and cess).43 Limited Liability Partnerships
the State Governments. Each tax levied or (“LLP”) are taxed at 30 percent irrespective of
collected has to be backed by an accompanying turnover, however the tax benefit lies in the
law, passed either by the Parliament or the State fact that while distributions by companies are
Legislature. effective taxed at 20 percent either as dividend
or buyback tax, there are no additional taxes
on distributions by LLPs. However, operating
V. Direct Taxes a retail business through investments in an
LLP would be subject to the regulatory and FDI
A. Income Tax regime described above in this paper.
A company is said to be resident in India if it is
Income tax in India is levied under the Income
incorporated under the laws of India or when
Tax Act, 1961 (“Income Tax Act”). India,
it’s Place of Effective Management (“POEM”)
in terms of direct taxes (Income tax) follows
is in India.44 POEM has both an objective and
a system of progressive taxation wherein the
a subjective element. Should the objective
rate of taxation increases as the income bracket
critieria be met, then it is presumed that the
increases. India follows a blend of source and
POEM of the company is outside India if the
residence bases of taxing income.
majority of the board meetings are conducted
In broad terms, profits earned from any trade outside India. Please note that for this purpose,
would be taxed under the ITA under the the objective criteria would include looking
head of income “profits and gains of business at factors such as where the majority of the
and profession.” Therefore, the income from employees are located, the proportion of
profits and gains from retail trade are similarly passive income such as dividends, interest or
computed in the way provided for under this royalties and the proportion of salary expenses
head of income. to personnel in India. Should the objective
test not be met, then the POEM of a company
However, small business carried on by an
is the place where the key management and
individual, Hindu undivided family and
commercial decisions that are necessary for
partnership who are residents and whose total
the conduct of the business of an entity are, in
turnover or gross receipts do not exceed INR 20
substance made. This test however, remains
million (approx. USD 285,160) have the option
substantially subjective and is decided on a case
of being presumptively taxed at a rate of 8
to case basis. The Central Board of Direct Taxes
percent of the total turnover or gross receipts
(“CBDT”) has however clarified that provisions
relating to POEM would not apply to companies

43. Surcharge is applicable @ 7% if the total income is in excess

of INR 10 million and 12% if in excess of INR 100 million and
education cess is applicable @ 3% on income tax (inclusive
of surcharge, if any).
44. Section 6(3) of the ITA

© Nishith Desai Associates 2018 21

 Provided upon request only

having turnover or gross receipts less than INR Under Section 115-O of the Income Tax Act,
500 million (approx. USD 7.13 million) during an Indian company is required to pay dividend
a financial year.45 distribution tax (“DDT”) at the rate of 15
percent (excluding surcharge and cess) on
Foreign companies (which are not POEM
dividends that are declared, distributed or paid
resident) in India are taxed at 40 percent
by a domestic company. However, no further
(excluding surcharge and cess) with
taxes are payable in India on such dividend
a disallowance of expenses.46 These companies
income in the hands of the shareholders once
are however taxed in India only to the extent
DDT is paid by the company.
the income is sourced from India. Under
Section 9 of the ITA, income arising from When exiting, or restructuring of business
a ‘business connection’ in India is deemed wherein sale of assets held by the company
to be sourced in India. Business connection takes place, capital gains tax is payable at a rate
is a concept based on the source theory of of up to 40 percent (excluding surcharge and
taxation to justify the source country’s right to cess) contingent on whether the capital gains
tax income arising from activities carried out are long term or short term. India also contains
in that country provided certain prescribed provisions for levying capital gains tax on
nexus thresholds are satisfied. The definition the indirect transfer of assets whereby tax is
of business connection was further expanded levied on the transfer of assets situated outside
by the Finance Act, 2018 with the introduction India, when such assets derive substantially
of the new concept of Significant Economic their value from assets in India.48 Certain
Presence (“SEP”), the presence of which would types of payments in India require the payer
constitute a business connection. The definition to withhold tax as ‘tax deducted at source’.
of SEP has been provided to mean transactions However, there remain many nagging issues
in respect of goods, services or property carried with respect to these taxes. Minimum alternate
out by a non-resident in India if the aggregate tax (“MAT”) at 18.5 percent is also payable on
payments arising from such transactions the book profits of a company, if the company’s
exceed a prescribed amount. It also includes the income due to exemptions is less than 18.5
systematic and continuous soliciting of business percent of its book profits.49
activities or engaging in interaction with such
Moreover, for foreign companies which
number of users in India, through digital means
provide digital advertising or related services
as may be prescribed.47 Considering the wide
to their Indian counterparties, carrying on
definition of SEP, foreign companies conducting
retail trade in India, an additional tax in the
business of selling products in India would be
form of ‘Equalization Levy’ (“EL”) may become
considered as having a business connection in
payable in India. The EL was introduced in
India and thus taxed on the profits attributable
2016 as a response to new business models
to India. Further, ecommerce activities which
which operated in jurisdictions with little or
involve interaction with Indian users through
no physical presence. New set of tax challenges
digital means may also fall under this definition.
arose with such models, with difficulties in
However, it is to be noted that the thresholds
determining where the income generated
to determine SEP have yet not been notified.
should be taxed particularly with respect to
However, it is expected that the same shall be
nexus, characterization, valuation of data and
soon notified by the CBDT.
user contribution. The EL is a 6 percent tax that
is to be paid by the resident service recipient
45. Central Board of Direct Taxes, Circular No. 08 of 2017, dated on payments made to a non-resident service
23rd February, 2017. provider for provision of online advertisement
46. Surcharge is applicable @ 2%if the total income is in excess
of INR 10 million and 5% where the total income is in excess
of INR 100 million. Education cess is applicable @ 3% on
income tax (inclusive of surcharge, if any). 48. Explanation 5, Section 9(1)(i), ITA
47. Explanation 2A, Section 9(1)(i), ITA 49. Section 115JB, ITA

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 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

or digital advertising space or facilities for in general based on the doctrine of ‘substance
the purposes of online advertisement, when over form’. India has also introduced wide GAAR
the aggregate consideration is more than provisions which provide broad powers to the
INR 100,000 (approx. USD 1,425) in a year. Indian tax authorities to deny tax benefits by
Further, EL has been deliberately kept outside characterizing arrangements as ‘impermissible
the purview of India’s income tax regime avoidance arrangements’ if the main purpose
and consequently, the government has taken of a transaction is to avoid the payment of
the position that tax treaty relief should not taxes. GAAR has come into effect from April
be available. As a consequence, countries of 1, 2017 in India. The GAAR provisions in India
residence of the foreign service providers could include the power to disregard entities in a
potentially refuse to grant tax credits against structure, reallocate income and expenditure
the EL paid in India thereby leading to double between parties to the arrangement, alter the
taxation. It is also possible that this regime could tax residence of such entities and the legal situs
be significantly expanded in the future to cover of assets involved, look through an arrangement
most cross-border digital services. In any event, by disregarding any corporate structure, treat
such services should already be subject to GST, debt as equity and vice versa, and the like.50 Such
in which case the EL would be an additional wide discretionary powers gives much room for
levy on top of that. misuse of ambiguous expressions while defining
an impermissible avoidance arrangement., which
Separately, recently tax authorities have
includes terms such as misuse, abuse, bona
challenged the deep discounting model in
fide purpose, and commercial substance of
e-commerce by seeking to categorize advertising
arrangements.51 Further, arrangements lacking
expenses as capital expenses instead of business
commercial substance are deemed to include
expenses. While the Karnataka High Court has
amongst others, round trip financing, elements
remanded the matter back to the tax officer for
that have the effect of offsetting or cancelling each
re-assessment, the final word on this issue is not
other, and arrangements not having a significant
out yet, despite several rulings in the past on
effect upon business risks or net cash flows other
categorization of advertising expenses.
than in relation to tax benefits.52 Even investing
though an intermediate jurisdiction into India
B. General anti-avoidance rules could potentially trigger GAAR. Thus, there exists
(“GAAR”) a possibility of a wider interpretation given to
such subjective terms, leading to a large number
of transactions coming under the scrutiny of the
Anti-avoidance rules are introduced by countries
tax authorities. In effect, there arise two main
as a tool for checking aggressive tax planning
concerns - lack of clarity in how these provisions
by businesses that enter into arrangements
would be applied and the wide discretionary
and transactions with the objective of avoiding
power conferred on the revenue authorities.
tax. Specific Anti-Avoidance Rules (“SAAR”)
are made applicable to particular scenarios and Further, the Central Board of Direct Taxes
arrangements. This includes transfer pricing (“CBDT”) has clarified that GAAR and SAAR
regulations which tax transactions between can coexist and applied as and when necessary
group companies on an arm’s length basis. as per the facts of the situation. It has even laid
These regulations have been explained in the down that anti-abuse rules in tax treaties may
section below. not be sufficient to address all tax avoidance
strategies and therefore domestic anti-avoidance
General Anti-Avoidance Rules (“GAAR”) on
rules should be applied. However, it has been
the other hand empower tax authorities to deny
transactions or arrangements which do not have
any commercial substance or consideration 50. Section 98, ITA.
other than achieving tax benefits. Thus, GAAR 51. Section 96, ITA
are rules which check potential avoidance of tax 52. Section 97, ITA

© Nishith Desai Associates 2018 23

 Provided upon request only

noted that if avoidance is sufficiently addressed Pricing Agreements (“APA”). An APA brings tax
by Limitation of Benefits clauses in treaties, certainty by being an ahead-of-time agreement
i.e. clauses which limit treaty benefits to those between the taxpayer and the tax authorities,
persons who meet certain conditions, GAAR whereby the transfer price for future years is
would not apply.53 determined in advance. An APA is valid for
a period of maximum of 5 years and the APA
Moreover, investments made prior to March
would be binding only on the taxpayer and the
31, 2017 are grandfathered in and GAAR applies
concerned commissioner and his subordinates.
only prospectively, i.e. to investments made
If however there is a change in law or a fact post
after April 1, 2017.
the execution of the APA, the APA shall cease to
be valid from the date of such change. Further,
C. Transfer Pricing Framework the Central Board of Direct Taxes is empowered
to declare any APA as invalid (void ab initio) if it
i. International Transfer Pricing finds that the APA has been obtained by fraud or
misrepresentation of facts.
Commercial transactions between related
entities of multinational corporations
increasingly dominate the sphere of world
ii. Domestic Transfer Pricing
trade. The pricing of these transactions between
The ITA also contains specific domestic transfer
related parties, which is known as ‘transfer
pricing provisions. It is provided that if the
pricing’, may differ from those that take
domestic transactions between two related
place between unrelated parties. In India, the
persons or two units of the same entity exceed
transfer pricing regulations (“Regulations”) are
INR 200 million (USD 2.85 million), then
contained in sections 92 to 92F of the Income
in order to determine the correctness of the
Tax Act. The Regulations provide for a transfer
income from domestic related party transaction,
pricing mechanism based on computation of
the transfer pricing regulations (including
income arising out of cross-border transactions
procedural and penal provisions) would be
having regard to the arm’s length price (“ALP”).
extended to such domestic transactions as well.
The ALP as codified in the Regulations has
its roots in the Organization for Economic While the rationale for these provisions is
Co-operation and Development (“OECD”) under-standable, it no doubt increases the
Transfer Pricing Guidelines for Multinational compliance burden of many a corporate tax
Enterprises and Tax Administrations. The “ALP” payer. One significant issue that arises is that
is defined to mean a price, at which transactions while the APA regime has been introduced
between persons other than associated with respect to international transactions, the
enterprises, in uncon-trolled circumstances are same benefit has not been extended in cases of
carried out. domestic transactions.
The Act stipulates stringent penalties for non- Moreover, ‘safe harbor rules’ have been notified
compliance with transfer pricing provisions. in September 2013, with the aim of providing
Presently, all enterprises having a turnover more certainty to taxpayers and to address the
greater than INR 150 million (approx. USD 3 growing risks of transfer pricing litigation in
million) fall within the ambit of compulsory India, Under this regime, the tax authorities
audit by a special Transfer Pricing Officer. would accept the transfer price set by the
taxpayer if the taxpayer and transaction meet
It is important to note that the Finance Act, 2012
the eligibility criteria specified in the rules.
has introduced a regime relating to Advanced

53. Central Board of Direct Taxes, Circular No. 07 of 2017, dated

27th January, 2017

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 Destination India: Welcome Retail

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VI. Indirect Taxes supply and intra-state supply. Every inter-state

supply of goods or services is liable to IGST
Prior to July 1, 2017, a series of central and under the IGST Act, while every intra-state
state taxes were levied at various stages of the supply of goods or services is liable to both
production and distribution process. These CGST under the CGST Act, and SGST / UTGST
included central excise duty on manufacture, under the applicable SGST Act / UTGST Act.
central sales tax on inter-state sale, sales tax / Supply is treated as either inter-state, or intra-
value added tax on intra-state sale, and service state, depending on the location of the supplier,
tax on the rendering of services. Moreover, credit and the “place of supply” determined in
for input taxes paid was not uniformly available accordance with the provisions of the IGST Act.
across central and state levies thereby leading to
GST is levied at rates that vary between nil
a cascading of taxes. With the introduction of
– 28 percent depending on the rate schedule
the Goods and Services Tax (“GST”), India now
applicable to the supply in question. To prevent
has unified indirect tax system.
cascading of taxes, a uniform input tax credit
GST has subsumed and broadly replaced the system is available in respect of input supplies
following taxes: of goods or services used or intended to be used

Central Indirect Taxes State Indirect Taxes

ƒ Central Excise Duty ƒ State VAT / Sales Tax
ƒ Additional Excise Duty ƒ Entertainment and Amusement Tax (except
when levied by local bodies)
ƒ Additional Customs Duty (CVD)
ƒ Central Sales Tax (levied by Centre and
ƒ Excise Duty levied under the Medicinal and Toilet collected by State)
Preparations (Excise Duties) Act, 1955
ƒ Luxury Tax
ƒ Special Additional Duty of Customs
ƒ Octroi and Entry Tax
ƒ Service Tax
ƒ Purchase Tax
ƒ Central Surcharges and Cesses so far as they
relate to supply of goods and services ƒ Taxes on lottery, betting and gambling
ƒ Taxes on advertisement
ƒ State surcharges and Cesses so far as they
relate to supply of goods and services

A. Goods and Services Tax

in the provision of output supplies of goods or
The GST regime is comprised of three major
services or both. GST is a consumption tax and
pillars: the Central Goods and Services Tax
is typically passed on to the consumer of the
Act, 2017 (“CGST Act”) which provides for
good / service as part of the price.
the taxing powers of the Central Government,
individual State / Union Territory Goods and As a general rule, the import of goods or services
Services Tax Acts (“SGST Act” and “UTGST or both into India qualifies as a taxable inter-
Act” respectively) which provide for the taxing state supply chargeable to IGST, while the
powers of each State / Union Territory, and the export of goods or services or both from India
Integrated Goods and Services Tax Act, 2017 is treated as a zero-rated supply not chargeable
(“IGST Act”), which grants exclusive rights to to tax under the GST regime, subject to certain
the Centre to tax inter-state commerce. conditions.
Under the GST regime the “supply” of goods, or
services, or both, is treated as the taxable event,
with different taxes applying to inter-state

© Nishith Desai Associates 2018 25

 Provided upon request only

Some basic GST terms are as follows: regardless of their size or the value of the
services being supplied by them in India
1. Taxable events: The levy of tax is on the
in a financial year. These include foreign
“supply” of goods or services and on imports.
companies supplying Online Information
The scope of supply under GST is wide
Database Access and Retrieval services
enough to include all forms of supply
(“OIDAR services”) from outside India
of goods or services or both such as sale,
to Indian consumers or to non- registered
transfer, barter, exchange, license, lease or
businesses in India, non-resident taxable
disposal made or agreed to be made for a
persons, persons making supply on behalf
consideration by a person in the course or
of other registered taxable persons, persons
furtherance of business. The term supply
making supply (except of branded services)
includes the following three elements:
through e-commerce operators and e-com-
a. Place of Supply: The place of supply merce operators.
of goods or services determines the
3. Rates: Under the GST regime, there
governing law in relation to the
are separate provisions of tax rates for
transaction. As discussed, if the supply
goods and services, further bifurcated
is inter-state, the IGST law is applicable
into separate IGST, CGST, and SGST.
whereas in case of an intra-state supply,
These notifications have seen multiple
both CGST and SGST laws become
amendments since GST came into force.
applicable. A cross-border supply of
good and services crossing the Indian Further, supply of certain goods and
customs frontier is subject to IGST. In services have been designated as ‘Zero rated
order to determine the place of supply, supply’ of goods and services, meaning,
the location of the recipient or that of the although it is taxable supply, zero rate of
supplier, importer or exporter, as the case tax would be charged in respect to such
may be, becomes important to determine. supply and Input Tax Credit (“ITC”) or
refund can be claimed. Such supplies relate
b. Time of Supply: The time of supply
to: (a) exports of goods or services (ii) supply
is important to ascertain since it
of goods or services to a Special Economic
determines when the tax is to be levied.
Zone developer or a unit. 54
c. Value of Supply: GST is computed on
the value of the supply. The value of OIDAR Services
supply is the transaction value in case
Similar to the service tax regime that preceded
of transactions between unrelated
it, the GST regime also captures digital services
parties and where price is the sole
within the definition of OIDAR services, which
consideration.
includes services ‘whose delivery is mediated
2. Taxable person: A taxable person is defined by information technology over the internet or an
under GST as a person who is either reg- electronic network and the nature of which renders
istered or is liable to be registered under their supply essentially automated and involving
the provisions of the GST laws. The CGST minimal human intervention and impossible to
Act requires that every supplier having ensure in the absence of information technology.’ The
an aggregate turnover of INR 2 million definition further includes a list of services within
(approx. USD 28,504) or more in a financial the definition of OIDAR services: advertising on
year shall register from where he makes the internet providing cloud services; provision
a taxable supply of goods or services. of e-books, movie, music, software and other
However, the threshold of INR 2 million intangibles through telecommunication
(approx. USD 28,504) is not applicable networks or internet; providing data or
to certain classes of persons who are
required to register under the GST regime
54. Section 16(1), IGST Act

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 Destination India: Welcome Retail

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information, retrievable or otherwise, to any and the Government should provide the
person in electronic form through a computer necessary clarifications / amendments to
network; online supplies of digital content address the above issues. However, it is
(movies, television shows, music and the like); understood that the tax authorities are enforcing
digital data storage; and online gaming.55 registration only if the company has any
physical present or establishment in that state.
In any case, it is expected that the GST Council
B. Ambiguities within the GST will implement a single registration scheme for
regime such digital companies in the near future.
i. Cumbersome Registration
Regime ii. Tax Collection at Source (“TCS”)
Obligations for E-commerce
Unlike the general provisions requiring the
supplier to register in the State from where he
Operators
is making the supply of services 56 there is no
GST has brought in an additional challenge of
specific provision in relation to a non- resident
TCS on e-commerce operators as the scope of
supplier providing services outside India. This
the definition of e-commerce operator is broad
is not only a severely cumbersome requirement
and includes all forms of e-commerce business
for foreign multinational enterprises (“MNEs”),
models. An e-commerce operator has been
but even more so for foreign small and medium
defined to mean “any person who owns, operates
enterprises (“SMEs”) and start-ups accessing the
or manages digital or electronic facility or platform
ever-growing Indian market through the internet.
for electronic commerce”.58 Further, e-commerce
Another point of significant concern is the has been defined as “supply of goods or services
registration requirements under the SGST Acts or both, including digital products over digital or
and CGST Act wherein it is stated that electronic network.” 59
a supplier making a taxable supply of goods
E-commerce operators are mandatorily
or services in a state must register in that state,
required to collect and pay GST (by way of TCS)
whereby service suppliers may be required to
on behalf of the suppliers at the prescribed rate
obtain an SGST registration in every state where
on the net value of taxable supplies of goods
their customers are located.
or services made through the operator, within
A foreseeable hindrance which the absence 10 days from the end of the month and furnish
of an SGST registration may cause is where a monthly statement of outward supplies
a supplier seeks to claim input tax credit for for the same.60 The CGST Act further places
SGST discharged in the state other than the significant compliance burden on e-commerce
state where such supplier is registered. This operators, which in most cases are start-
is because the SGST Acts only contemplate ups. The Government has currently deferred
availment of input tax credit with respect to the applicability of the TCS obligation on
persons registered under the respective SGST e-commerce operators indefinitely for
Acts. 57 The registration requirement in every a smooth GST roll out.61 It will be a mammoth
destination state is highly onerous to business burden on e-commerce operators to claim
a refund of TCS paid for the orders which have

55. Section 2(17), IGST Act

56. Section 22(1), CGST Act 58. Section 2(45), CGST Act
57. Section 2(62) of the SGST Acts (particularly, Maharashtra, 59. Section 2(44), CGST Act
Karnataka and Tamil Nadu) defines ‘input tax’ “in relation
60. Section 52, CGST Act
to a ‘registered person’ (i.e. a person registered under the
concerned SGST Act) as CGST, SGST of the concerned state, 61. Deferment of Tax Collection At Source Provision Under GST
IGST or UTGST charged on any goods or services supplied to To Help Sellers: Amazon, NDTV Profit, (June 26, 2017, 22:44
him. IST)

© Nishith Desai Associates 2018 27

 Provided upon request only

been returned or canceled. This problem will in different states, is treated as a ‘distinct person’
primarily arise when the return of the order in respect of each such registration.62
takes place in the following month as it will
Under the CGST Act, this has been expanded to
not have been accounted for while determining
also cover intra-entity supply of services, and also
the ‘net taxable supplies’ and TCS would have
supplies made between voluntarily registered
accordingly been deducted and paid on it.
establishments within a state. Therefore,
Imposing such a financial and administrative even services such as back-office functions or
burden may be considered an unreasonable Information Technology (“IT”) support services
restriction on the right of e-commerce operators provided within the entity by a division or
to carry on business in India. While the TCS branch of the entity could potentially be treated
obligations on e-commerce operators are as a taxable supply. In order to escape the levy of
currently deferred, it is recommended that the GST on intra-entity support services, it could be
same be repealed as these could be harmful to argued that the services are not provided in the
the development of e-commerce which is one of ‘course or furtherance of business’. Having said
the cornerstones of the digital economy. that, this is likely to result in litigation which
could impact all enterprises having multiple
The industry has made several representations
branches in the country.
to the GST Council regarding this issue and it is
expected that this provision may be deleted or
never implemented. In the meanwhile, the GST C. Customs Duty
Council has continuously extended the period
for which this provision shall not be implement. In addition to GST, customs duty is a duty that
is levied on goods that are imported into India
and exported from India. Customs duty is levied
iii. Intra-entity Transactions by the Central Government. The Customs Act,
1962 (“Customs Act”) provides for the levy and
The pre-GST provisions did not subject to tax
collection of duty on imports and exports, import
the transactions within an entity as it required
/ export procedures, prohibitions on importation
a ‘registered dealer’ to be the subject of tax.
and exportation of goods, penalties, offences, etc.
While CGST Act defines ‘person’ to include
The rates at which customs duty is levied are
a company, the definition of ‘person’ and
specified in the Customs Tariff Act, 1975. While
‘supplier’ should not include a division or unit
export duties are levied occasionally to mop up
of a company. A clarification issued by the
excess profitability in international prices of
Central Board for Excise and Customs (“CBEC”)
goods in respect of which domestic prices may
provides that ‘an unregistered person who is liable
be low at the given time, levy of import duties
to be registered is a taxable person’. Consequently,
is quite wide. Prior to the introduction of GST in
it is a moot point on how tax authorities would
India, import duties were generally categorized
treat large entities which provide services
into basic customs duty, additional customs
within the entity or engage in branch transfers.
duties, countervailing duty, safeguard duty and
This, coupled with the reiteration in the CBEC
anti-dumping duty. With the introduction of GST,
Clarification that ‘a person making supplies
the customs framework has been significantly
from different States needs to take separate
revamped. Import of goods is now subject to
registration in each State’, makes compliance
IGST at the rate prescribed for inter-state supply
onerous. The need for multiple-registrations is
of the goods concerned, in addition to basic
reinforced when it is seen that each registered
customs duty, while most other duties have been
establishment is treated as a separate entity
abolished, or significantly curtailed. While the
effectively and is required to avail credit.
standard rate of customs duty for import of goods
Therefore, a person who has obtained multiple
registrations or is legally required to obtain
multiple registrations, whether within a state or
62. Section 25(4), CGST Act and Schedule 1, CGST Act

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 Destination India: Welcome Retail

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is 28.84 percent (including IGST and education Therefore, retailers will have to be mindful
cess), the actual rate may vary according to the of the competition law implications while
product description. entering into agreements which may be held
violative of the above principles.
VII. Competition Laws Retail by e-commerce is treated at par with
other models in India; competition law and
In this section, we highlight certain issues policy, thus, may extend to dealings on a virtual
arising from the competition regime with platform as well.
possible implications for the retail sector.
Recently, online retailers came to the limelight
One may note that under Section 32 of the
where it was alleged that they were indulging
Competition Act, 2002 (“Competition Act”),
in unfair business practices by entering
extra territorial application is conferred on its
into exclusive agreements to sell products
provisions. This is a valid exercise of legislative
exclusively on select portals and thereby
power under the Constitution of India. This
violated competition norms by abusing their
implies that even if an agreement is entered
dominant position. However, the CCI clarified
into outside India, it can still be brought under
with its decision that such pacts need not affect
the scrutiny of the Competition Commission
competition as it does not create any entry barrier
of India (“CCI”), if it can be shown that such
for new entrants as such. Of late, there has also
agreement has an appreciable adverse effect
been growing concern that deep discount sales
on competition in India. Competition Act
launched by these e-commerce websites are anti-
in its approach, leans more towards the EU
competitive in nature although the decision from
competition jurisprudence, as against the
the CCI is still pending.
antitrust laws of the US.

A. Anti-competitive Agreements B. Abuse of Dominance

In order to determine whether an enterprise is
Anti-competitive agreements can be vertical
in a dominant position, there are no arithmetic
or horizontal. A version of the ‘per se’ rule is
parameters or particular share of the market
applicable for horizontal agreements in India,
size as was the case in the MRTP Act, 1969. The
where certain agreements are presumed to have
dominance of an enterprise is measured by its
an appreciable adverse effect on competition in
power to operate independent of its competitors
India. On the other hand, verticals agreements
and to affect its competitors and consumers
are governed by ‘rule of reason’ where the onus
in its favor, apart from other criterions such as
lies with the anti-trust regulator to prove an
size of the enterprise, entry barriers, economic
arrangement to have an appreciable adverse
power etc.
effect on competition. Though horizontal
agreements like cartel are rendered a stricter Additionally, predatory pricing if engaged by
treatment under the competition law regime, giant retailers can be regarded as abuse of a
vertical arrangements involving tie-in dominant position and therefore violative of the
arrangement, exclusive supply agreement, provisions of Competition Act.
exclusive distribution agreement, resale price
maintenance and exclusive dealings can also be
found to have an ‘appreciable adverse effect’ on
competition within the territory of India under
Competition Act.

© Nishith Desai Associates 2018 29

 Provided upon request only

C. Combinations that crosses the prescribed financial

thresholds for the joint assets / turnover.
On March 4, 2011, the Government of India
So consolidation activity in the retail sector will
through the Ministry of Corporate Affairs
have to be mindful of the thresholds prescribed
notified the provisions of the Competition Act
under the competition laws of India.
relating to “combinations” namely Sections 5
and 6. Although notified as of March 4, 2011, Recently, the CCI approved Walmart’s USD 16
these provisions came into effect from June billion purchase of a 77 percent stake in Flipkart,
1, 2011. The said provisions requires every despite protests from local traders in India
acquirer undertaking combinations (defined over the deal potentially driving small retailers
in section 5) above a prescribed threshold limit / shops out of business. On deep discounts
in India or overseas (with an India connection), and preferential treatment of sellers, the CCI
to notify the CCI of a combination unless acknowledged that such issues were already
specifi-cally exempted and seek its approval prevalent prior to the proposed transaction and
prior to effectuating the same in the manner deferred it to the industry regulator to look into. 65
set out in Section 6 of the Competition Act and
regulations governing combination.
VIII. International Trade Law
D. Important Points The industry contends that as per the ex¬tant
foreign trade policy (“FTP”), retailers are
The triggers of the Competition Act relating eligible to get license from Directorate General
to combinations are linked to the value of the of Foreign Trade (“DGFT”) under Served From
turnover / asset of parties (the acquirer and the India Scheme (“SFIS”). However, the same has
target) or the group 63 to which the target will so far been denied to retailers. Such ambiguity
belong post-acquisition or the target and not the in the policy should be clarified and the SFIS
transaction value. In terms of Section 5 of the license should be given to retailers who are
Act, a ‘combination’ includes: generating foreign exchange inflows. Any sales
using foreign currency / international credit
1. the acquisition64 of control, shares or
cards must be counted against this and duty
voting rights or assets by a person;
credit entitlements must be credited for retailers.
2. the acquisition of control of an enterprise
where the acquirer already has direct or
indirect control of another engaged in
A. Trade Related Investment
identical business; and Measures
3. a merger or amalgamation between or
One of the questions raised by the Discussion
among enterprises;
Paper on FDI in retail was whether the restric-
tions placed on FDI with respect to local content
requirements are compatible with India’s TRIMs
(defined hereinafter) obligations.
63. Under the Competition Act, as modified by the notification
dated March 4, 2011, “group” is defined to mean two or more The Agreement on Trade-Related Investment
enterprises which, directly or indirectly are in a position to: Measures (“TRIMs Agreement”), negotiated
a. exercise 50% or more of the voting rights in the other
enterprise; or during the Uruguay Round, applies only
b. appoint more than 50% of the members of the board of to measures that affect trade in goods.66
directors in other enterprise; or
c. control the management or affairs of the other enterprise.
64. As per section 2(a) of the Competition Act “acquisi-tion”
means, directly or indirectly, acquiring or agreeing to
65.
acquire -(i) shares, voting rights or assets of any enterprise;
or (ii) control over management or control over assets of any 66. Also see India and TRIMS, available at: http://com-merce.nic.
enterprise; in/wtotrims.htm

30 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

Recognizing that certain investment measures only those who fulfill specified local content
can have trade restrictive and distorting requirements. Second, the decision also clarifies
effects, it states that no Member shall apply a the relationship between TRIMs Agreement and
measure that is prohibited by the provisions the Agreement on Subsidies and Countervailing
of General Agreement on Tariff and Trade Measures.
(“GATT”) Article III (national treatment)67
or Article XI (quantitative restrictions).68
Examples of inconsistent measures, as spelled
B. Antidumping and Subsidies
out in the Annex’s Illustrative List, include and Coun-tervailing Measures
measures which require particular levels of
local procurement by an enterprise (local GATT (Article 6) allows countries to take
content requirements) or which restrict the action against dumping. The Anti- Dumping
volume or value of imports that an enterprise Agreement clarifies and expands Article 6, and
can purchase or use to an amount related to the two operate together. They allow countries
the level of products it exports (trade balancing to act in a way that would normally break the
requirements). The local content requirements GATT principles of binding a tariff and not
that the discussion paper raised as one among discriminating between trading partners —
the issues for deliberation will fall within the typically anti-dumping action means charging
definition of these prohib¬ited measures under extra import duty on the particular product
TRIMs Agreement. from the particular exporting country in order
to bring its price closer to the “normal value” or
In this regard, it is interesting to note that the
to remove the injury to domestic industry in the
Panel of WTO’s Dispute Resolution Body also
importing country.70
observed in a dispute more widely known as
Indonesia-Autos that: “We recall in this context It provides three methods to calculate
that internal tax advantages or subsidies are a product’s “normal value”. The main one is
only one of many types of advantages which based on the price in the exporter’s domestic
may be tied to a local content requirement market. When this cannot be used, two
which is a principal focus of the TRIMs alternatives are available — the price charged by
Agreement. The TRIMs Agreement is not the exporter in another country, or a calculation
concerned with subsidies and internal taxes as based on the combination of the exporter’s
such but rather with local content requirements, production costs, other expenses and normal
compliance with which may be encouraged profit margins. The agreement also specifies
through providing any type of advantage. Nor, how a fair comparison can be made between the
in any case, do we see why an internal measure export price and what would be a normal price.71
would necessarily not govern the treatment of
One reason why restriction on FDI in retail are
foreign investment.”69
imposed is the potential for dumping that it
The significance of this decision, thus, is brings about. Generally speaking, anti-dumping
twofold. The local content requirements duty investigations are carried out under
do not necessarily have to be in the nature Sections 9A of the Customs Tariff Act, 1975
of a restriction or a prohibition. It can also read with Section 9B ibid and the rules made
be an advantage or incentive, available to thereunder. Antidumping duties are expected
to overcome only the problem of dumping. To
deal with the problem of direct and indirect
67. That a member State should treat imported goods and domes-
tically produced goods at par with each other.
68. Restrictions that limit the quantum of imported goods by
way of a quota, for example, as opposed to imposition of non- 70. Understanding the WTO: The Agreements, Anti-dumping,
quantitative restrictions like a customs duty or otherwise. subsidies, safeguards: contingencies, etc. Available at: http://www.
wto.org/english/ thewto_e/whatis_e/tif_e/agrm8_e.htm. Last
69. Panel Report on Indonesia — Autos, para. 14.73, available
accessed, August 14, 2018.
at: http://www.wto.org/english/res_e/ booksp_e/analytic_
index_e/trims_01_e.htm#fnt1. 71. Ibid.

© Nishith Desai Associates 2018 31

 Provided upon request only

Government subsidies there is provision for utilised by the overseas fulfillment op-erations
countervailing duties. In both cases injury and therefore tax-efficient strategies should be
and casual link must necessarily be proved. employed to minimise potential tax liabilities
These investigations are carried out under the such as royalties, fees for technical services,
amended provisions of the Customs Tariff Act, or income tax.
1975, and the rules made thereunder.
A recent development of particular interest
In the same vein, care should also be exercised to retail franchisors is intellectual property
while promulgating export-related initiatives securitization that allows companies to account
for the goods that are exported out of India.72 for intangible assets such as intellectual
When certain conditions are satisfied, such property, royalty and brands and realize their
export incentives can also be termed a subsidy, full value. In recent years, a number of large
depending on whether there is export target restaurant franchisors have securitized their
requirements attached to any incentive or brands to raise funds, including Dunkin Donuts
advantage that a person can obtain. and Domino’s Pizza (Domino’s).73

IX. Intellectual Property X. Employment Laws

Regime
As discussed above, the retail sector in India is
the second largest employer after agriculture.
Under the 9th edition of International
India ranks 6th in the Retail Talent Index
Classification of Goods (Nice Classification)
and the retail sector employ approximately 8
retail services are afforded separate trademark
percent of India’s population,74 with demand
protection under category 35. E-tailing, or
for skilled workers expected to rise. Therefore,
e-retailing, is also classified under the same
in the context of retail, training and retaining
category. Interestingly, the issue of whether the
work force is one of the biggest challenges that
activity of retail trading in goods in general or
this sector faces. Further, stringent Indian labor
specifically the services rendered in connection
laws govern the number of hours worked and
with retail selling constitute services for which
minimum wages to be paid leading to limited
protection by means of trade mark registration
flexibility of operations and employment of
should be granted has long been debated both
part-time employees. Additionally, multiple
across the globe.
local clearances are required by the same
Care should be taken on dealing with issues company for opening new outlets / stores,
of trademarks, copyrights, designs, patents, adding to the time and costs incurred to expand
labeling, packaging, on-pack promotions presence in the country.
and retail price promotions, and ancillary
Additionally, due to a shortage of talented
intellectual property rights including the
professionals, especially at the middle-
negotiation of licences, efficient from a tax and
management level, foreign players who wish
regulatory perspective.
to depute employees to India will have to
Internet retailers who wish to take advantage comply with employment related Indian
of an offshore base for fulfillment will need to be immigration laws.
aware of the tax implications of the transfer of
With retail featuring as one of the top five
assets abroad legislation. Assets such as domain
sectors increasingly hiring women work force,
names, brand names, trademarks, customer
it is important to note that recently law on
databases and other similar assets will be

73. Nisar, T. M., Intellectual Property Securitization and Growth

Capital in Retail Franchising. Journal of Retailing, 3 JOURN OF
72. Bhala, Raj. & Kennedy, Kevin. 1998, World trade law: the
RETAILING 87, 393-405 (2011).
GATT-WTO system, regional arrangements, and U.S. law, Lexis
Law Pub Charlottesville, Va. 74. Supra Note 7.

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 Destination India: Welcome Retail

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prevention of sexual harassment against female used to register complaints against senders
employees at the work place has been enacted. of UCC. The situation improved but only
The Sexual Harassment of Women at Work marginally once the TRAI Do-Not-Disturb
Place (Prevention, Prohibition and Redressal) (DND) mobile app was launched. Overall, even
Act, 2013 (“Sexual Harassment Act”) has been after 16 amendments; the existing regulations
made effective on April 23, 2013 by way of failed to curb the problem of unsolicited
publication in the Gazette of India. commercial communications (UCC). Whilst
the new regulations provided a code of
It is also important to note the recent move of
conduct, access providers were free to form
the Cabinet to introduce a new model law that
their own codes of practices to procedurally
would allow malls, cinema halls, restaurants,
and operationally implement the provisions
shops, banks and other workplaces to be open
of the draft regulations. Further, although the
24/7 for 365 days a year. The interplay of this
draft regulations were technology-centric, costs
move with the current labour and employment
involved in implementation should not be
laws would be an interesting exercise as this
exorbitant.
would also bring e-commerce companies under
the labour law rulebooks. However, the Cabinet i. for transaction-related communications –
notes that with the flexibility available to there is an implied / inferred consent taken
retailers to open their establishments 24/7, from the subscriber, and
it will not only add thousands of additional skill
ii. for promotional communications – if the
jobs but also make the retail markets across the
subscriber is not registered on DND, then
country very vibrant.
such communications may be sent by the
telemarketer. If the subscriber is registered
XI. Telecom and Information on the DND, then explicit consent is
Technology Laws required to be taken from the subscriber.

The UCC regulations are however, only

There are a couple of regulations that retailers
applicable to voice and SMS communications
that resort to e-commerce and m-commerce
and not over-the-top communications, for
should be aware of. Telecom Regulatory
instance such as through WhatsApp, which are
Authority of India (“TRAI”) had issued the
becoming more prominent these days.
Telecom Commercial Communications
Customer Preference Regulations, 2010
with the objective of providing an effective XII. Payment and Settlement
mechanism for curbing unsolicited commercial Laws
communications (“UCCs”). The National
Consumer Preference Registry is established
In India, the payment and settlement systems
with this end in view, which is a database of
are regulated by the Payment and Settlement
telephone numbers of subscribers who do not
Systems Act, 2007 (“PSS Act”) which was
want to receive UCCs.
legislated in December 2007. The PSS Act as
However, these regulations are being repealed well as the Payment and Settlement System
as TRAI has introduced new regulations called Regulations, 2008 framed thereunder came into
the Telecom Commercial Communications effect from August 12, 2008. In terms of Section
Customer Preference Regulations, 2018, 4 of the PSS Act, no person other than the RBI
which will come into force in phases during can commence or operate a payment system in
2018. The main problem with the existing India unless authorized by the RBI. The RBI has
regulations was that the existing regulations since authorised payment system operators of
were primarily complaint and redressal based. pre-paid payment instruments, card schemes,
Although the masses in India were frustrated cross-border in-bound money transfers, ATM
with UCC, only a miniscule number of people networks and centralised clearing arrangements.

© Nishith Desai Associates 2018 33

 Provided upon request only

E-commerce companies that encourage online The Prime Minister on October 26, 2017
payments for goods and services are required announced that the Government of India is
to be compliant of the PSS Act and regulations working on a revised consumer protection law.
issued in this regard. This announcement was not made in isolation
but in fact was done as part of his address at
The use of gift cards, e-wallets, pre-loadable
The International Conference on Consumer
cards and other forms of pre-paid instruments
Protection for East, South & South-East
are governed under the RBI Master Direction
Countries. The revision in law has been on the
on Issuance and Operation of Prepaid Payment
cards for a while, hence on the occasion of the
Instruments dated October 11, 2017.
abovementioned conference the PM seems to
have reiterated the fact.
XIII. Consumer Protection Later, a Consumer Protection Bill, 2018 was
Laws tabled before parliament. The Bill also imposes
a penalty on anyone who “publishes, or is a party
It is important to keep in mind consumer to the publication of an advertisement” of food
protection issues. In India the Consumer products liable for penalty if such advertisement
Protection Act 1986 (“CPA”) governs the is misleading or falsely describes such a food
relationship between consumers and service/ article. We need to examine how the safe
goods providers. There is no separate consumer harbour available to Intermediaries under the
protection law that is specific to and regulates Information Technology Act continues to apply.
online transactions. Liability under the CPA
arises when there is “deficiency in service” or Additionally, a term ‘unfair contract’ has also
“defect in goods” or occurrence of “unfair trade been inserted which states that contracts which
practice”. The CPA specifically excludes from its require ‘… (v) prohibiting contract relating to
ambit the rendering of any service that is free terms permitting or having the effect of permitting
of charge. If actual sales are taking place on the one party to assign the contract to the detriment of
online platform, the users will be considered the other party without that other party’s consent;
‘consumers’ under the CPA and its provision or (vi) imposes unreasonable charge, obligation
will apply to the sale of products by the online or conditions on consumers.’ – Therefore, terms
platform. Depending upon who is actually such as unilateral right to update T&Cs, blanket
selling the goods or rendering services the consent, arbitration clauses etc. included
liability may trigger. The distributor of goods in terms of use would therefore need to be
also comes within the purview of the CPA. evaluated in this light.
There is a special adjudicating forum (with
appellate forums) which is constituted under XIV. Miscellaneous
the CPA. Some of the various sanctions which
may be imposed under the CPA are as below: Multiple laws and regulations are in force at
the central, state and local levels for governing
i. Removal of defects / deficiencies
the retail sector. There are various laws such
ii. Replacement of goods as the Consumer Protection Act, Essential
Commodities Act, the Cold Storage Order,
iii. Return of price paid;
the Weights & Measures Act, the Shops
iv. Pay compensation as may be awarded; Establishments Acts, code of advertising, local
labor laws that may become applicable to retail
v. discontinue the unfair trade practice or the
sector depending on the kind of business the
restrictive trade practice or not to repeat
entity is engaged in.
them;

34 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

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3. Permissible Models for Entry of Foreign

Players
While there is no proven model for India as of distributing products or services. The Blacks
yet, in addition to direct foreign investment Law Dictionary defines a franchise as “a license
in companies engaged in retail trading in from the owner of a trademark or trade name
compliance with the sectoral cap and conditions permitting another to sell a product or service
that may be applicable, the following are some under that name or mark.”75 Though there is no
permissible models for entry into the Indian specific law pertaining to franchising in India,
retail sector. franchising as a business deals with various
general commercial laws and industry specific
laws. It would be important to understand how
I. Franchise Agreements these different laws can affect a franchising
business in India and what issues could arise.
Franchising is the easiest and most widely
There are various forms of entering into
used route by international retailers to enter
franchising arrangements. Some of the popular
India. While, the Indian law does not define
franchise models are reproduced below:
franchising, it simply means a method

Structure 1

Franchisor

Master franchise agreement

Master franchisee

Sub-franchise agreement

Local Local Local

franchisee franchisee franchisee

Structure 2

Franchisor

Area development agreement Franchise agreement

Franchisee Franchisee Franchisee

75. Blacks Law Dictionary, (6th Ed.) Centennial Edition (1891-

1991) at p. 658.

© Nishith Desai Associates 2018 35

 Provided upon request only

Under the master franchise structure, Further, from an exchange control perspective,
a multinational company i.e. franchisor in an international franchise arrangement
will typically enter into a master franchise between an Indian resident and a non-resident,
agreement for a particular territory with the remittance for purchase/ use of trademark/
counterpart in effect allowing the master franchise is freely permitted.76 Further,
franchisee to sub-franchise the rights to local withdrawal of foreign exchange by persons for
franchisee in that particular jurisdiction. payment of royalty and lump-sum payment
under technical collaboration agreements can
Under the second structure, the franchisor
be made without the approval of Ministry of
directly enters into franchise agreement with
Commerce and Industry, Government of India.77
local area franchisee unlike the master franchise
structure.
While the concept of franchising seems simple,
II. Strategic Licensing
there are several issues that must be dealt with Agreements
before entering into a franchising arrangement.
For example: In a franchising arrangement, the Under the strategic licensing arrangement,
issues with respect to enforceability of franchise an international retailer licenses distribution
agreement, protection of intellectual property rights to Indian companies. Through these
rights of the franchisor / owner, constitution of rights, Indian companies can either sell it
agency and issues under applicable anti-trust through their own stores, or enter into shop-in-
laws must be kept in mind. shop arrangements or distribute the brands to
franchisees. The diagrammatic representation
of the structure is given below:

International retailer
Overseas
Distribution agreement

India
Indian company

Outlets Outlets Outlets

76. Vide Press Note No. 8 (2009 Series), dated December 16, 2009
77. Vide RBI/2009-10/465 A. P. (DIR Series) Circular No. 52 dated
May 13,. 2010

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 Destination India: Welcome Retail

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III. Manufacturing and Wholly Owned Subsidiaries

From exchange control perspective, conditionalities in retail trading are applicable to companies
engaged in trading (whether SBRT or MBRT or wholesale cash and carry). Therefore, international
brands have set up wholly-owned subsidiaries engaged in manufacturing of products are allowed
to do retail trading. Further, these manufacturing companies can sell their products in India under
franchising, distribution arrangements or through their own outlets. The diagrammatic representation
of the structure is given below:

Multinational parent
Overseas company
100%
100%

India Indian subsidiary company

(engaged in manufacturing)

IV. Investment into an Indian owned and controlled company

According to the FDI Policy, an Indian company which is owned and controlled78 by an Indian
resident directly or through Indian companies, will be considered as an Indian company. Thus, any
downstream investments made by such a company (which has foreign investment of less than 50
percent) would not be taken as having any indirect foreign investment. However, this methodology for
computation of foreign investment will not apply to sectors that are governed specifically by separate
statutes, such as the insurance sector.
In light of the above and based on the interpretation of the provisions of the FDI Policy, if an Indian
operating and holding company is owned and controlled by Indian promoters/ shareholders, the
downstream investment in a company (carrying on retail trading) should not be regarded as FDI
even though there is foreign investment in an Indian operating and holding company, provided
the investment of foreign investor in Indian operating and holding company is below 50 percent
and the foreign investor does not exercise control in Indian operating and holding company. The
diagrammatic representation of the structure is given below:

Foreign Investor
Over
Overse
seas
as 49%
49%
India
Indian 51%
51 %
Operating Holding Co.
Promoters (Indian owned
& shareholders & controlled)
100%
100%

Retail Co.

78. The definition of ‘control’ was recently amended by way of Press Note 4 (2013 Series) and now reads as follows: ‘Control’ shall include
the right to appoint a majority of the directors or to control the management or policy decisions including by virtue of their share-
holding or management rights or shareholders agreements or voting agreements.” Available at: http://dipp.nic.in/English/acts_rules/
Press_Notes/pn4_2013.pdf .

© Nishith Desai Associates 2018 37

 Provided upon request only

However, it is possible, that the regulator may As per the FDI Policy, marketplace based
take a different view on this structure. This is model of e-commerce means providing of
because the downstream investment is in a an information technology platform by an
subsidiary that is engaged in business falling in e-commerce entity on a digital & electronic
a restricted sector and the regulator may view network to act as a facilitator between buyer
the proposed structure as not aligned with and seller.
the sectoral caps on retail trading. One must
The main feature of this model is that the
keep this in mind when finalising investment
e-commerce firms like Flipkart, Snapdeal,
structures in retail sector.
Amazon, etc. will be providing a platform for
customers to interact with a selected number
V. Investment in Back end of sellers. When an individual is purchasing
Structure a product from an e-commerce retailer, he will
be actually buying it from a registered seller in
that e-commerce platform. Hence, this entity
Investment in retail sector can be made in
only provides a platform where a consumer
wholesale trading company (“WTC” or “back
meets a seller. Inventory, stock management,
end company”) in which 100 percent FDI is
logistics, etc. are not supposed to be actively
permissible under the automatic route also
done by the e-commerce firm.
engaged in back end activities. Such a WTC
can undertake transactions with a front end As per the latest policy, 100 percent FDI under the
company (“Retail Co.”) engaged in retail automatic route is permitted in the marketplace
trading. However, such wholesale trade made to model of e-commerce which means that we
Retail Co. if a group company cannot exceed 25 could see a shift of most e-commerce players
percent of the total turnover of WTC. towards adoption of this model.
Further, WTC may enter into a licensing
agreement for use of brands as well as a services VII. Operating based on
agreement whereby WTC may provide certain Inventory based Model
services to Retail Co.
Given the sensitivity surrounding the retail As per the FDI Policy, inventory based model
sector in India any transaction structure that is of e-commerce means an e-commerce activity
proposed must be mindful of the overall policy where inventory of goods and services is owned
perspective of the Government and to that by e-commerce entity and sold to the consumers.
extent may be exposed to a degree of regulatory The main feature of this model is that
scrutiny. the customer buys the product from the
e-commerce firm. He manages the inventory,
interfaces with customers, runs logistics and is
VI. Operating based on involved in every aspect of the business.
Marketplace Model
However, the FDI Policy does not allow FDI in
this model of e-commerce. This could mean that
Marketplaces are platforms that enable a large, e-commerce entities who run on this model start
fragmented base of buyers and sellers to discover restructuring their business method.
price and transact with one another in an
percent Companies Act, 2013 in terms of
environment that is efficient, transparent and
restrictions on layers of subsidiary.
trusted.

38 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

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VIII. Investment under IX. Investment in brands

the Foreign Portfolio using step down
Investment Route subsidiary model
A foreign investor can also consider making Where a multinational retail company is owner
investment in securities of an Indian listed of various distinct brands as is common in
company engaged in retail sector using the fashion and luxury space, such a foreign
the foreign portfolio investment route in company could consider holding new/ different
compliance with the Securities and Exchange single brand in a different entity by dropping a
Board of India (Foreign Portfolio Investors) step down in the existing structure.
Regulations, 2014 (“FPI Regulations”).
Given the investment will be subject
to FPI Regulations, the sector specific
conditionalities imposed under the FDI Policy
on FDI investment in retail sector shall not be
applicable.
The foreign investor who satisfies the eligibility
criteria prescribed under the FPI Regulations will
have to obtain a certificate of registration through
designated depository participants on behalf of
SEBI in one of three categories prior to making
any investments.79
Such an FPI can invest in shares, debentures
and warrants of companies, unlisted, listed or
to be listed on a recognized stock exchange in
India, through primary and secondary markets
provided that investment in the issued capital
of a single retail company by a single FPI or an
investor group shall be below 10 percent of the
total issued capital of the company. Further, the
investment shall be subject to SEBI regulations in
relation to issuance of shares and disclosures etc.

79. The FPI Regulations classify FPIs into three categories

based on their perceived risk profile. An outline of the
three categories as follows: A Category I investor would
include governments and government related investors
such as sovereign funds, while Category II would include
appropriately regulated entities primarily in the banking and
financial sector, including banks, broad based funds, asset
reconstruction companies, investment/ portfolio managers.
Lastly Category III would cover all others not covered under
Category I or II such as endowments, charitable societies,
charitable trusts, foundations, corporate bodies, trusts,
individuals and family offices.

© Nishith Desai Associates 2018 39

 Provided upon request only

4. Conclusion
The Indian retail sector has matured over The reforms in FDI in both SBRT, MBRT and
the years but is still highly unorganized. The further investments by joint ventures with
country’s estimated annual retail opportunity of domestic retail players will give the industry
USD 600 billion is a great opportunity for both a boost and have a trickle-down effect on the
domestic and international retailers. agricultural and food sector in India.
Cumulative FDI inflow from April 2000 to
– Retail Team
December 2017 in the retail sector reached
USD 1,141 million. The country needs more
You can direct your queries, views, suggestions,
investment in the retail and allied sectors such
and comments on our research paper to
as cold chains, warehousing and logistics.
retailteam@nishithdesai.com

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 Destination India: Welcome Retail

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About NDA
At Nishith Desai Associates, we have earned the reputation of being Asia’s most Innovative Law Firm
– and the go-to specialists for companies around the world, looking to conduct businesses in India
and for Indian companies considering business expansion abroad. In fact, we have conceptualized
and created a state-of-the-art Blue Sky Thinking and Research Campus, Imaginarium Aligunjan, an
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We are a research and strategy driven international firm with offices in Mumbai, Palo Alto
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integrated manner basis key insights carefully culled from the allied industries.
As an active participant in shaping India’s regulatory environment, we at NDA, have the expertise and
more importantly – the VISION – to navigate its complexities. Our ongoing endeavors in conducting
and facilitating original research in emerging areas of law has helped us develop unparalleled
proficiency to anticipate legal obstacles, mitigate potential risks and identify new opportunities
for our clients on a global scale. Simply put, for conglomerates looking to conduct business in the
subcontinent, NDA takes the uncertainty out of new frontiers.
As a firm of doyens, we pride ourselves in working with select clients within select verticals on
complex matters. Our forte lies in providing innovative and strategic advice in futuristic areas of
law such as those relating to Blockchain and virtual currencies, Internet of Things (IOT), Aviation,
Artificial Intelligence, Privatization of Outer Space, Drones, Robotics, Virtual Reality, Ed-Tech, Med-
Tech & Medical Devices and Nanotechnology with our key clientele comprising of marquee Fortune
500 corporations.
The firm has been consistently ranked as one of the Most Innovative Law Firms, across the globe. In
fact, NDA has been the proud recipient of the Financial Times – RSG award 4 times in a row, (2014-
2017) as the Most Innovative Indian Law Firm.
We are a trust based, non-hierarchical, democratic organization that leverages research and knowledge
to deliver extraordinary value to our clients. Datum, our unique employer proposition has been
developed into a global case study, aptly titled ‘Management by Trust in a Democratic Enterprise,’
published by John Wiley & Sons, USA.
A brief chronicle our firm’s global acclaim for its achievements and prowess through the years -

ƒAsiaLaw 2019: Ranked ‘Outstanding’ for Technology, Labour & Employment, Private Equity,
Regulatory and Tax

ƒRSG-Financial Times: India’s Most Innovative Law Firm (2014-2017)

ƒMerger Market 2018: Fastest growing M&A Law Firm
ƒIFLR 1000 (International Financial Review - a Euromoney Publication): Tier 1 for TMT,
Private Equity

ƒIFLR: Indian Firm of the Year (2010-2013)

ƒLegal 500 2018: Tier 1 for Disputes, International Taxation, Investment Funds, Labour &
Employment, TMT

ƒLegal 500 (2011, 2012, 2013, 2014): No. 1 for International Tax, Investment Funds and TMT

© Nishith Desai Associates 2018 41

 Provided upon request only

ƒChambers and Partners Asia Pacific (2017 – 2018): Tier 1 for Labour & Employment, Tax, TMT
ƒIDEX Legal Awards 2015: Nishith Desai Associates won the “M&A Deal of the year”, “Best Dispute
Management lawyer”, “Best Use of Innovation and Technology in a law firm” and “Best Dispute
Management Firm”

42 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

Please see the last page of this paper for the most recent research papers by our experts.

Disclaimer
This report is a copy right of Nishith Desai Associates. No reader should act on the basis of any state-
ment contained herein without seeking professional advice. The authors and the firm expressly dis-
claim all and any liabilitytoanypersonwhohasreadthisreport,or otherwise, in respect of anything, and
of consequences of anything done, or omitted to be done by any such person in reliance upon the
contents of this report.

Contact
For any help or assistance please email us on ndaconnect@nishithdesai.com
or visit us at www.nishithdesai.com

© Nishith Desai Associates 2018 43

 Provided upon request only

The following research papers and much more are available on our Knowledge Site: www.nishithdesai.com

Fund Formation: Social Impact The Curious Case

Attracting Global Investing in India MUMBA I SI L IC O N VALLE Y BAN G ALORE SI N G AP ORE MU MBAI BKC NEW DELHI M U NIC H N E W YO RK

of the Indian
Investors Gaming Laws
The Curious Case
of the Indian
Gambling Laws
Legal Issues Demysitified

February 2018

March 2018 © Copyright 2018 Nishith Desai Associates www.nishithdesai.com

July 2018 February 2018

Corporate Social Incorporation of Outbound

Responsibility & Company LLP in Acquisitions by
MU M BA I SI LI C O N VALLE Y BAN G A LO RE SI N G A P O RE M UMBAI BKC NEW DELHI M UN I C H N E W YO RK

Corporate Social
Social Business India India-Inc
Responsibility & Social
Business Models in India Models in India
A Legal & Tax Perspective

March 2018

September 2014
© Copyright 2018 Nishith Desai Associates www.nishithdesai.com

March 2018 April 2017

Internet of Things Doing Business in Private Equity

India and Private Debt
Investments in
India

September 2018
January 2017 March 2018

NDA Insights
TITLE TYPE DATE
Blackstone’s Boldest Bet in India M&A Lab January 2017
Foreign Investment Into Indian Special Situation Assets M&A Lab November 2016
Recent Learnings from Deal Making in India M&A Lab June 2016
ING Vysya - Kotak Bank : Rising M&As in Banking Sector M&A Lab January 2016
Cairn – Vedanta : ‘Fair’ or Socializing Vedanta’s Debt? M&A Lab January 2016
Reliance – Pipavav : Anil Ambani scoops Pipavav Defence M&A Lab January 2016
Sun Pharma – Ranbaxy: A Panacea for Ranbaxy’s ills? M&A Lab January 2015
Reliance – Network18: Reliance tunes into Network18! M&A Lab January 2015
Thomas Cook – Sterling Holiday: Let’s Holiday Together! M&A Lab January 2015
Jet Etihad Jet Gets a Co-Pilot M&A Lab May 2014
Apollo’s Bumpy Ride in Pursuit of Cooper M&A Lab May 2014
Diageo-USL- ‘King of Good Times; Hands over Crown Jewel to Diageo M&A Lab May 2014
Copyright Amendment Bill 2012 receives Indian Parliament’s assent IP Lab September 2013
Public M&A’s in India: Takeover Code Dissected M&A Lab August 2013
File Foreign Application Prosecution History With Indian Patent
IP Lab April 2013
Office
Warburg - Future Capital - Deal Dissected M&A Lab January 2013
Real Financing - Onshore and Offshore Debt Funding Realty in India Realty Check May 2012

44 © Nishith Desai Associates 2018

 Destination India: Welcome Retail

Legal, Tax & Regulatory Primer with Industry insight

Research @ NDA
Research is the DNA of NDA. In early 1980s, our firm emerged from an extensive, and then pioneering,
research by Nishith M. Desai on the taxation of cross-border transactions. The research book written by him
provided the foundation for our international tax practice. Since then, we have relied upon research to be the
cornerstone of our practice development. Today, research is fully ingrained in the firm’s culture.
Our dedication to research has been instrumental in creating thought leadership in various areas of law and
public policy. Through research, we develop intellectual capital and leverage it actively for both our clients and
the development of our associates. We use research to discover new thinking, approaches, skills and reflections
on jurisprudence, and ultimately deliver superior value to our clients. Over time, we have embedded a culture
and built processes of learning through research that give us a robust edge in providing best quality advices and
services to our clients, to our fraternity and to the community at large.
Every member of the firm is required to participate in research activities. The seeds of research are typically
sown in hour-long continuing education sessions conducted every day as the first thing in the morning. Free
interactions in these sessions help associates identify new legal, regulatory, technological and business trends
that require intellectual investigation from the legal and tax perspectives. Then, one or few associates take up
an emerging trend or issue under the guidance of seniors and put it through our “Anticipate-Prepare-Deliver”
research model.
As the first step, they would conduct a capsule research, which involves a quick analysis of readily available
secondary data. Often such basic research provides valuable insights and creates broader understanding of the
issue for the involved associates, who in turn would disseminate it to other associates through tacit and explicit
knowledge exchange processes. For us, knowledge sharing is as important an attribute as knowledge acquisition.
When the issue requires further investigation, we develop an extensive research paper. Often we collect our own
primary data when we feel the issue demands going deep to the root or when we find gaps in secondary data. In
some cases, we have even taken up multi-year research projects to investigate every aspect of the topic and build
unparallel mastery. Our TMT practice, IP practice, Pharma & Healthcare/Med-Tech and Medical Device, practice
and energy sector practice have emerged from such projects. Research in essence graduates to Knowledge, and
finally to Intellectual Property.
Over the years, we have produced some outstanding research papers, articles, webinars and talks. Almost on daily
basis, we analyze and offer our perspective on latest legal developments through our regular “Hotlines”, which go
out to our clients and fraternity. These Hotlines provide immediate awareness and quick reference, and have been
eagerly received. We also provide expanded commentary on issues through detailed articles for publication in
newspapers and periodicals for dissemination to wider audience. Our Lab Reports dissect and analyze a published,
distinctive legal transaction using multiple lenses and offer various perspectives, including some even overlooked
by the executors of the transaction. We regularly write extensive research articles and disseminate them through
our website. Our research has also contributed to public policy discourse, helped state and central governments
in drafting statutes, and provided regulators with much needed comparative research for rule making. Our
discourses on Taxation of eCommerce, Arbitration, and Direct Tax Code have been widely acknowledged.
Although we invest heavily in terms of time and expenses in our research activities, we are happy to provide
unlimited access to our research to our clients and the community for greater good.
As we continue to grow through our research-based approach, we now have established an exclusive four-acre,
state-of-the-art research center, just a 45-minute ferry ride from Mumbai but in the middle of verdant hills of
reclusive Alibaug-Raigadh district. Imaginarium AliGunjan is a platform for creative thinking; an apolitical eco-
system that connects multi-disciplinary threads of ideas, innovation and imagination. Designed to inspire ‘blue
sky’ thinking, research, exploration and synthesis, reflections and communication, it aims to bring in wholeness
– that leads to answers to the biggest challenges of our time and beyond. It seeks to be a bridge that connects the
futuristic advancements of diverse disciplines. It offers a space, both virtually and literally, for integration and
synthesis of knowhow and innovation from various streams and serves as a dais to internationally renowned
professionals to share their expertise and experience with our associates and select clients.

We would love to hear your suggestions on our research reports. Please feel free to contact us at
research@nishithdesai.com

© Nishith Desai Associates 2018 45

MUMBAI S I L I C O N VA L L E Y BANGALORE

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tel +91 22 6669 5000 tel +1 650 325 7100 tel +91 80 6693 5000
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S I N G A P O RE MUMBAI BKC NE W DELHI

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Singapore 049 909 Bandra–Kurla Complex New Delhi 110 024, India
Mumbai 400 051, India
tel + 65 65509855 tel +91 11 4906 5000
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MUNICH NE W YORK

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80539 Munich, Germany New York, NY 10152
tel +49 89 203 006 268 tel +1 212 763 0080
fax +49 89 203 006 450

Destination India: Welcome Retail

© Copyright 2018 Nishith Desai Associates www.nishithdesai.com