Donation treatment - a foreign company or subsidiary or mnc

This query is : Open

Querist : Anonymous

Querist : Anonymous (Querist)

21 December 2018 Treatment of corporate donations

As per the FCRA act, if a company falls under any of the below 3 category, they should be treated as foreign source

1) A foreign company as defined u/s 2(1) (g) of FCRA, 2010.
Definition of “Foreign Company” under section 2 (1) (g) of FCRA Act 2010 w.e.f 1st May 2011 :
“Foreign company” means any company or association or body of individuals incorporated outside India and includes (i) foreign company within the meaning of section 591of the Companies Act, 1956 (ii) a company which is a subsidiary of foreign company (iii) the registered office or principal place of business of a foreign company referred to in sub-clause (i) or company referred to in sub-clause(ii) (iv) a multi-national corporation
Explanation – for the purpose of this sub-clause, a corporation incorporated in a foreign country or territory shall be deemed to be a multi-national corporation if such corporation –(a) has a subsidiary or a branch or a place of business in two or more countries or territories or (b) carries on business or otherwise operates in two or more countries or territories
OR
2) A foreign subsidiary as u/s 2 (87) of the Companies Act, 2013
Definition of subsidiary as defined under section 2(87) of the Companies Act.
(87) “subsidiary company” or “subsidiary”, in relation to any other company (that is to say the holding company), means a company in which the holding company— (i) controls the composition of the Board of Directors; or (ii) exercises or controls more than one-half of the total share capital either at its own or together with one or more of its subsidiary companies:
Provided that such class or classes of holding companies as may be prescribed shall not have layers of subsidiaries beyond such numbers as may be prescribed.
Explanation.—For the purposes of this clause,—
(a) a company shall be deemed to be a subsidiary company of the holding company even if the control referred to in sub-clause (i) or sub-clause (ii) is of another subsidiary company of the holding company; (b) the composition of a company’s Board of Directors shall be deemed to
be controlled by another company if that other company by exercise of some power exercisable by it at its discretion can appoint or remove all or a majority of the directors; (c) the expression “company” includes any body corporate; (d) “layer” in relation to a holding company means its subsidiary or subsidiaries;
OR
3) A Multi-National Corporation as defined u/s 2(1) (g) (iv) FCRA 2010
Explanation – for the purpose of this sub-clause, a corporation incorporated in a foreign country or territory shall be deemed to be a multi-national corporation if such corporation –(a) has a subsidiary or a branch or a place of business in two or more countries or territories or (b) carries on business or otherwise operates in two or more countries or territories

On the other hand,
As per amendment to Section 2 (1) (j) (vi) in the Finance Act 2016 (and subsequently Finance Act 2018) if a NGO received a donation or a grant from a company which was an Indian company registered under the Indian Companies Act, but, with more than fifty per cent share-holding by foreign investors, such a company was no more considered as “foreign source”.

Hence, the question is, whether the following companies i.e. Apple India Private Ltd, Franklin Templeton Asset Management India P.Ltd, Altico Capital India Pvt.Ltd and DSP Merrill Lynch Ltd fall under the category of Foreign Subsidiary? Or under the amended section2 (1) (j) (vi)