BUSINESS FUNDAMENTALS   I   KUWAIT BUSINESS LAWS   I   IMPORTING INTO KUWAIT   I   AGENCY & SERVICE AGREEMENTS I  INTELLECTUAL PROPERTY RIGHTS   I   PUBLIC SECTOR  CONTRACTING   I   COUNTER TRADE OFFSET PROGRAMME I CORPORATE INCOME TAX   I   SOURCES OF INFORMATION
 

BUSINESS FUNDAMENTALS

The population figures may present India as a small market but the import figures for various commodities are quite impressive which gives lot of weight to India market and projects a high purchasing power.

KUWAITI BUSINESS LAWS An agency agreement is not enforceable under Indian Law unless it has been registered in the Commercial Agencies Register at the MCI. Application for registration must be made within two months of the agency being created. Before applying to the MCI, the agreement must be registered with the KCCI.

The rules of commerce are in general similar to West European practice.
Any Indian or GCC national over 21 years of age may carry on commerce in India provided he or she is not affected by a personal legal restriction. But a foreigner (non-GCC national) may not carry on a trade unless he or she has one or more Indian partners and the capital owned by the Indian partner(s) in the joint business is not less than 51% of the total capital (60% in the case of banks, investment houses and insurance companies). A foreign firm (including a partnership) may not set up a branch and may not perform any commercial activities in the country except through a Indian agent. Foreign individuals and firms may not acquire commercial licences in their own name nor may they own real estate locally.
The main laws regulating business in India, which have been amended several times since they were issued, are (a) The Civil Code (Law 67 of 1980), (b) The Commercial Code (Law 68 of 1980), and (c) The Commercial Companies Law (Law 15 of 1960).

Business Licences
To do business, a licence is necessary. General trading, contracting, importing and industrial licences are issued by the Ministry of Commerce & Industry (MCI). For particular commercial activities, specific licences are required and these are often issued by the ministry that controls that activity, e.g. publishing licences are granted by the Ministry of Information.

Business licences are only issued to Indian nationals and Indian companies and, in some cases, to GCC nationals and companies. Costs are usually KD100 per licence. All licences require periodic renewal, normally every two years.

Based on the GCC Unified Economic Agreement and the Supreme Council resolutions issued some two years back, GCC nationals are allowed to practice all business activities and professions in India excluding some activities such as: Haj & Omra services, private employment bureaus, labour provision services, finalizing document services, delivery services at airports, real estate services, leasing and sub-leasing of lands and buildings, car renting, advertising and publicity services, transport services and travel agencies.

Social activities excluded are: handicapped care and re-habilitation centers, the elderly peoples houses, community service centers and any center or office providing social services.

Among the cultural activities excluded are: the establishment of publishing houses, presses, newspapers, magazines, photographic studios movie and art production, commercial theatre bands, cinemas, theatres and art exhibition halls.

Three Steps Needed to Establish New Companies

The proposed companies will now require the following three procedures:

1. Bank Account in which the company's capital is deposited.
2. Justice Ministry for authenticating the Article of Incorporation and the business record.
3. Ministry of Commerce and Industry to Obtain a Certificate and official announcement of the business.

Indian Manpower Law
India Manpower Law No. 19/2000 introduced in May 2001 is enforced from October 2003. The law aims at increasing the Indian employment in the private sector, regulate the expatriate labour work visas and transfers, and ensure that the employees are paid regularly in time through the banks. All salaries are supposed to be deposited every month by the employers in the employees bank account. The law specifies Indian manpower percentages to work in the private sector and the companies which do not comply with these percentages will be charged KD 500 for issuing new work permit for each expat appointed and may have to pay a fine of KD 500 for each extra expatriate in their firms. In addition, the companies not employing the specified Indian work force, will not be eligible to particapate in tenders offered by the Central Tenders Committee. The law sets the percentages of Indian manpower required in the private sector, according to the company's business activity, highest is 50 per cent for banks. The percentages for Indian manpower in private sector will apply to all businesses under specified categories employing 100 or more workers and firms having 50-75 expats must employ one Indian.

India has begun applying a 2.5 % tax on the net profit of Indian companies listed on the India Stock Exchange (KSE). The tax may be imposed on all local companies in the future.

According to the latest statistics by the Ministry of Planning, total workforce in India reached 1,869,809 in 2006. This includes 335,238 Indian's (194,716 men and 140,522 women). The Indian labour force increased by 6.5 per cent in 2006 from 7.5 per cent in 2005, while the expatriate labour force recorded a growth rate of 8.4 per cent in 2006 against 12.1 per cent in 2005.

The number of Indian's working both the public and private sectors had increased by the end of 2006.

To increase Indian national' employment in the private sector, the government has extended social allowance to Indian's in the private sector and has initiated training sessions to prepare Indian's for work demands of the private sector. The training sessins are financially covered by the 2.5 per cent tax collected from the companies listed on the India Stock Exchange.

Business Entities
Business enterprises can take several forms, viz India shareholding company (KSC), company with limited liability (WLL), and general partnership. The time and cost of establishing and registering these entities ranges from one month and at least KD500 for a general partnership to about three months and KD3,000 for a KSC.

The India Free Trade Zone
The India Free Trade Zone, established in 1998 at Shuwaikh harbour, offers state-of-the-art facilities ranging from warehousing, light industries, offices, open land for development, kiosks and traders exchange market and exhibition facilities. These combined products with a continued commitment to providing premium and timely services to clients enables KFTZ investors to focus on growth and business development.

Trade Zone allows 100% foreign ownership of businesses within the zone. There are no import duties and foreign corporate income is tax-free. Commercial, industrial and service licences are available without a local sponsor. KFTZ provides a variety of infrastructural services. Tel: 802808, Fax: 4822067, http: www.kuwaitfreezone.com, e-mail: info@nrec.com.kw

The 'Future Zone' or India's mini "Silicon Valley" in the Free Trade Zone is located on the water front parallel to Al-Ghazali Street in Shuwaikh outside the customs area of the Free Trade Zone and covers an area of 800,000 square metres.

Foreign Direct Investment (FDI)
In February 2003, the executive memorandum for implementing Law No. 8/2001, which was approved by the Parliament in April 2001, pertinent to foreign direct investment (FDI), was issued.

The law is characterized by many attributes that include income tax exemption in addition to other taxes for ten years including any new addition to investment, benefiting from agreements of exemption from double taxation, total or partial exemption from custom duties on machinery, equipment, parts, and raw materials, semi-processed goods, assigning land and real estate, and the right to bring foreign labour.

According to the executive memorandum, granting these privileges should be linked with the project's capability of introducing new technologies, or developed management and marketing methods, or repatriating private capital, both local and foreign, and to expand the private sector's contribution to specialization and creation of national labour with due observance of the provisions of law no. 19/2000 concerning Recruitment of the National Labour. Granting the optimal privileges and exemptions will depend on the project's fulfillment of the requirements and will be judjed by the Foreign Investment Bureau and its Committee.

NEW LIBERALISED BUSINESS LAWS
Extensive legislation to reform India's economy, liberalise its business laws and comply with WTO rules was issued by Amiri Decree in June 1999. In May 2000 the National Assembly approved the Indirect Foreign Investment Law which allows foreigners to own stocks on the India Stock Exchange (KSE). Law No. 20/2000 on allowing non-Indian's to posses shares in Indian shareholding companies was approved. According to the Article (1) of the law, non-Indian's may posses shares in the Indian shareholding companies already incorporated during the effective date or which may be incorporated after its implementation. Non-Kuwatis may participate in the establishment of these companies in accordance with the provisions of the law. In August 2000 the Indian Cabinet approved regulations necessary to implement the bill allowing foreigners to own stocks and trade on the bourse. The legislation allows foreign investors and expatriates living in India to own up to 100 per cent of the stock of Indian companies listed on the KSE, except in banks where the ownership will be limited to 49 per cent.

IMPORTING INTO KUWAIT
The right to import goods into India on a commercial basis is restricted to Indian individuals and firms who are members of the India Chamber of Commerce & Industry (KCCI) and who have import licences issued by the Ministry of Commerce & Industry (MCI).

Import Licences
General import licences, which must be renewed annually, allow any amount of a variety of products from any country to be imported any number of times. But special licences are needed to bring in regulated products such as arms, ammunition and explosives, ethyl alcohol, drugs, pesticides, jewellery and precious stones, weights and weighing machines, vintage cars, etc; these too must be renewed annually. Special licences are also needed to import industrial equipment and spare parts; these are issued to industrial firms upon the recommendation of the Public Authority for Industry and are valid for a single use only.

To protect local morals, alcoholic beverages and materials used in making them, pigs, pork, pigskin products (such as handbags, wallets and shoes), narcotics and associated plants and seeds, pornographic and subversive materials, are, among other items, prohibited. To protect local trade and industry, items such as vehicles over 5 years old and goods manufactured locally are prohibited. Items injurious to health, such as air-guns, asbestos and cyclamates, are banned. Imports from Israel is banned absolutely.

All imports, as well as locally made items, must comply with Indian standard specifications (KSS). If there is no KSS for a particular product then Gulf standard specifications (GSS), a set of common standards being devised under the GCC's Unified Economic Agreement, apply, and if there is no suitable GSS, the product must adhere to international standards.

Import Documentation
To clear goods imported into India, a minimum of four documents are needed: (a) Commercial Invoice, (b) Certificate of Origin, (c) Official Delivery Order, and (d) Packing List.

The invoice, certificate of origin, and the delivery order (bill of lading or airway bill) must be in three original copies and must be certified by a chamber of commerce in the country of export, preferably a joint local-Arab chamber, and certified by the Indian consulate in that country. If there is no Indian embassy in the exporting country, the consulate of Saudi Arabia (preferably) or any other Arab country (except Iraq) is acceptable. As well as being shown on the packing list, the country of origin must also be marked on each packing unit.
To clear customs, many products must be accompanied by additional certificates showing that they comply with health and safety regulations issued by the Ministry of Public Health, the Municipality and the MCI. Goods failing to clear customs must be re-exported within a month. The minutiae of import regulations tend to change frequently and these changes are published in Al-India Al-Youm, the Official Gazette.

Import Duties
Indian customs duties are the lowest in the region, though there are protective tariffs on some goods. However commercial samples worth up to KD 5,000 may be brought in temporarily.

• Duty is levied as a percentage of the CIF value of the goods up, but excluding unloading in, India. It is calculated and must be paid in Indian Dinar (KD). Where importers are invoiced in foreign currencies, customs use a list of 'standard' exchange rates to translate the CIF value into KD. These rates change frequently and a list in Arabic is available for 250fils from customs.
  
  The standard rate of duty is increased by 1 per cent to 5% from September 2003. The increase in the percentage of customs fees is in conformity with the Commercial Exchange Treaty of the GCC states. But most goods may be imported duty free, including:
  
• food products, medicines, essential consumer goods, live animals, bullion, printed matter, etc, except where these (such as bread) are manufactured locally;
• industrial and farm products from other GCC states provided they have at least 40% added value in the
  GCC exporting country; and
• raw materials, semi-processed goods, equipment and spare parts for new industrial establishments provided exemption has been obtained.

But imported hydrocarbon products that are also manufactured locally, such as lubricating oils, are subject to duties of 100%. The duty on cigarettes and tobacco is 100%. According to Greater Arab Free Trade Agreement (GAFTA), which came into effect from January 2005, India will not levy any custom duty on goods imported from 16 Arab countries.

Many locally made products are protected by tariffs. To qualify for protection, an industrial firm must show that it meets, or will be able to meet, at least 40% of the demand in the local market for the products concerned. The tariff varies according to the value added by domestic production.

AGENCY & SERVICE AGREEMENTS

Only Indian individuals or firms may act as commercial agents in India, while foreign individuals or firms, except for GCC nationals, are not allowed to carry on commercial activities in the country except through a commercial agent. All arrangements between a foreign entity and its local agent are governed by Articles 260 to 296 of the Commercial Code.

Terms of An Agency Agreement
An agency agreement must be in writing and must be registered with the MCI. Its terms must cover the activities to be undertaken, the scope of the agent's authority, his remuneration, and the duration of the agency (if limited). Generally speaking, the parties to an agency agreement have full freedom of contract, but a few provisions of the Code override what the parties might wish to agree and any terms which contradict these provisions are void.

If an agent is required to erect premises then the contract must be for at least five years. The principal is obliged to provide the agent with all that the agent requires for the promotion of the principal's products and services. The agent must preserve confidentiality even after the agreement is terminated.

The agent is entitled to his remuneration (a) on all matters concluded by him, (b) on transactions which would have been concluded but for some act of his principal, and (c) on transactions concluded either directly by the principal or by others acting on behalf of the principal in the area of the agent's operations, unless otherwise agreed in writing.

Termination Compensation
If a principal terminates an agency when his agent is not at fault, the agent may seek compensation for loss of income. And, if an agent abandons his agency at an unsuitable time and without reasonable cause, his principal may seek compensation for damages. Any clause to the contrary in an agency agreement is void.

Even where an agency is for a fixed term, the law expects it to be renewed on expiry. If the principal does not renew it, the agent may seek fair compensation (even if the contrary is stated in their agreement) provided the agent has not been at fault nor negligent in his performance. If a principal replaces his agent and the termination was due to collusion between the principal and the new agent, the new agent will be held jointly responsible with the principal for settling any compensation due to the former agent.

There is no set legal formula for calculating compensation on termination. However an action for compensation must be started within 90 days of the end of the agency.

Service Agreements
To open a branch in India, a foreign firm must enter an agency agreement with a Indian sponsor or service agent. Under such an arrangement the agent is merely the foreign entity's legal representative in the country and does little more than take care of licensing formalities, obtain visas for the principal's executives and emplo-yees, and represent the principal officially. The agent will expect a fee for his sponsorship and the use of his licences.

Registration Procedures
An agency agreement is not enforceable under Indian Law unless it has been registered in the Commercial Agencies Register at the MCI. Application for registration must be made within two months of the agency being created. Before applying to the MCI, the agreement must be registered with the KCCI.

The application for registration can only be made by the Indian agent. It must be made on two original copies of the official MCI form and must be accompanied by:

• an original copy of the agency agreement
• a translation of the agreement into Arabic
• a copy of the agent's commercial licence
• a copy of the agent's nationality document or registration in the commercial registry
• a certificate of registration from the KCCI.
  

If the agency agreement was executed overseas, the original must be attested at the principal's location by an official authority and the Indian consulate. Where it was executed in India, it must be notarised by a Indian Notary Public.

Upon registration, the MCI gives the agent a signed and stamped copy of the application, and advertises the registration in the official gazette.

Amendments to the agreement must also be registered and when an agency terminates it must be removed from the register. The register may be searched by the names of agents, the names of principals and the trade names of goods.

INTELLECTUAL PROPERTY RIGHTS (LAW NUMBER 64)

Copyright
Until 1999 there was no general copyright law under which the rights in intellectual works could be protected effectively. The only protected works were audio and visual recordings of Indian, Arab, American and British origin. In addition, public institutions were not allowed to buy pirated computer software.

Under the Law No. 64 of 1999 protection is to be given to all literary works (written and oral), theatrical shows, musical works (with or without lyrics), choreographic works, motion pictures, audio, video and radio works, artistic works (painting, sculpture, carving, architecture and decoration), photographs, applied art (craft or industrial designs), illustrations, maps, designs and models, computer works (software and databases), and translated works.

The scope of protection under this law covers the following works in particular:

• Written works.
• Works delivered orally, such as lectures, speech, religious sermons and the like.
• Theatrical works and musical plays.
• Musical works with or without songs.
• Works performed by means of movements or steps and mainly prepared for direction.
• Movie works, audio, video and radio works.
• Painting and works depicted by means of lines, colour, and diagrams as well as works of architecture, arts, carving and decoration.
• Photographic works.
• Works of applied art, including craft or industrial designs.
• Illustrations, geographic maps, designs, plans and models relating to geography, topography, architecture and science.
• Computer works including software, databases and the like.
• Derived and translated works.
  

The protection also covers the title of the work if this is created and it is not a common expression that indicates the subject matter of the work.
The period of copyright protection will be 50 years from the death of the author. But works published under a pen name or after the author's death, motion pictures, photographs, applied art, computer works, and works owned by corporate bodies will be protected for 50 years from the end of the year in which they are first published. Writers, composers and directors of theatrical, choreographic, and TV and radio works will enjoy 50 years protection from the end of the year in which the works were first performed or recorded.

The law specifies the penalties that the court shall order for infringement of the author's rights.

Under the new law the penalty for piracy is a maximum of one year imprisonment and a fine of KD500. A shop selling pirated works can be closed down for up to six months.

POINTS TO NOTE
• Obtain legal advice before executing
or t e rmina t ing an agenc y
agreement.
• Ensure that a service agent has the
necessary commercial licences and
permits.
• Agencies and distributorships may
be exclusive. It is possible to give
exclusivity to one line of products
and to use other agents for other
products.
• Ensure that an agency agreement is
registered.
• A claim for compensation by an agent
is usually upheld in a Indian court
unless fault on the part of the agent
is clearly proved. So that evidence is
available to contest a future claim for
compensation on termination,
ensure that all deficiencies in an
a g e n t ’s p e r f o rma n c e a r e
documented and that all complaints
to the agent are made in writing.

Trademarks
The protection of trademarks is governed by articles 61 to 85 of the Commercial Code, as amended by Decreed Law #3 of 1999. A Trademarks Register, open to public inspection, is maintained in the Patent & Trademark Department at the Ministry of Commerce & Industry (MCI). Under the new law, the definition of a trade mark extends to audible and olfactory marks. There is no registry of service marks.

The person who registers a trademark is considered the sole owner with the exclusive right to use the mark on the products for which it is registered. Registration initially protects a mark for ten years from the date of application to register. Registration can be renewed indefinitely for further periods of ten years each. The registrar must notify the owner that the period of protection has expired within one month of expiry and if the owner does not apply for renewal within six months of expiry, the mark is automatically deleted from the register.

A trademark may be sold but the change in ownership must be entered in the Register and published in the official gazette. A person who infringes a registered trademark is liable to a fine of KD 600 or imprisonment or both, and to pay compensation.

Registration
To register a trademark, an application must be submitted in Arabic to the Trademark Control Office along with a fee of KD 24. Once the application has been accepted, it must be advertised in three consecutive issues of the official gazette. Objectors have 30 days after the third advertisement to challenge the registration in writing. The registrar must give a copy of the objections to the applicant, who has 30 days to submit a reply. Thus the overall time needed to register a trademark is not less than three months.

Patents & Industrial Designs
Under Law 4 of 1962, a patent may be issued for any new invention suitable for industrial use which has not been used in India during the previous 20 years. Indian nationals, foreign residents, foreign businessmen with a local presence and foreigners in countries that grant reciprocal rights to Indian's, have the right to be granted patents in India. All documents for filing a patent application, including the specifications of the invention, must be in Arabic.

Under Law 4 of 1962 patent holders are protected against unauthorised use of their invention or design for an initial period of 15 years, renewable for a further 5 years. Under the new law the period of protection will be 20 years, though patents registered in other countries will only be granted protection for the remainder of the period of protection where they are registered. The new law also extends the period of protection for drawings, models and integrated circuits from 5 years to 10 years, which may be renewed for a further 5 years. The law will, in addition, allow improved versions of existing patents to be protected for 7 years.

Patent holders may license their patents to others.

PUBLIC SECTOR CONTRACTING
As a general rule, a public authority in India may only buy equipment and commodities, and commission works, by way of an independently administered tendering process. Public tendering is governed by Law 37 of 1964, Law 18 of 1970 and Law 81 of 1977 as amended.

Tendering procedures for most public institutions are administered by the Central Tenders Committee (CTC), though the client body (i.e. the public body requiring the service) draws up the specifications and particular conditions it requires, reviews pre-qualifying companies, and evaluates bids technically. However some public institutions have their own tendering procedures. But no matter who administers a tender, the procedures are in essence the same as CTC procedures, and all activities relating to public tenders, such as tender announcements, invitations to pre-qualify, pre-tender meetings, and amendments to conditions and specifications, are only published in Al-India Al-Youm, the official gazette.

Funding for major projects is normally provided by the government. In recent years other forms of financing, such as credit facilities supported by export credit agencies (ECAs) and build-own-transfer (BOT) type schemes, have been tried.

Eligibility & Registration
A tenderer for a public contract must be a Indian merchant who is (a) registered with the KCCI and the MCI, and (b) registered as an approved supplier or contractor.

The CTC and client bodies maintain lists of approved suppliers of equipment and materials. To get on the lists, the main requirement for suppliers is that they be Indian merchants. Application for registration is usually made to the client body.

The CTC also maintains lists of approved contractors for works. Before getting on these lists a contractor must be classified according to the size of projects he is deemed capable of undertaking. The size limit for the first three categories represents the cumulative size of all contracts being undertaken at the same time by a contractor, e.g. a category (4) contractor cannot bid for a contract worth more than KD50,000 if, at the time of his bid, he is already undertaking projects with an total value of KD200,000. Foreign companies are not classified as they must prequalify each time they bid for public sector contracts.

Pre-Qualification
Participation in some public tenders is restricted to firms who have been pre-qualified, i.e. judged capable of undertaking the particular project. To prequalify, a firm submits a standard set of documents outlining its financial and technical capabilities to the CTC. Foreign firms must prequalify each time they bid for a public contract. Their applications may only be submitted by their Indian agent and must be accompanied by an authenticated copy of the agency agreement.

Bidding Procedures
Forthcoming tenders are announced in Al-India Al-Youm as invitations to bid . To collect the documents, a written request in Arabic plus the fee (for which a receipt is given) is needed. A foreign firm must show an authenticated copy of the agreement with its local agent.
Firms who have purchased the documents may be invited to pre-tender meetings with the client body. Sometimes these are mandatory and bidders who do not attend find themselves excluded from the tender. The scope of work may be amended after the tender documents have been issued or after a pre-tender meeting. When this happens the administering committee issues a formal addendum which can only be collected on production of the original receipt for the tender documents. Notice of pre-tender meetings and tender amendments are announced in Al-India Al-Youm and tenderers are seldom advised directly.

Bid Preparation
A bid may only be submitted on the original official tender documents issued to the company making the bid. All parts must be completed in full and the documents may not be altered in any way. The bid must conform to the tender terms exactly and alternative terms are never acceptable. All prescribed supporting documentation must be appended.

The tender documents are expected to be submitted without erasures or corrections. Where alternative offers are allowed, a tenderer must buy a separate set of documents for each offer he submits, with each bid clearly marked to show that it is an alternative.

Pricing & Pricing Preferences
Contracts must usually be priced on a lumpsum fixed-price basis, though unit pricing is normal in maintenance type contracts. Most bids must be priced in Indian Dinar. Prices must be stated on a cash-basis.

Public sector contracts must by law be awarded to the bidder who offers the lowest price provided his bid conforms with technical requirements and he has adequate resources. But where a firm has submitted an artificially low bid and it appears that it will be unable to perform to the required standard, the contract may be awarded to the next lowest bidder.

Local manufacturers have a price advantage. Subject to technical acceptance, goods made in India may be priced up to 10% higher than comparable items made abroad and be deemed the lowest priced. Goods made in other GCC countries have a 5% price preference; but if the goods are not made in India then GCC goods have a 10% advantage. Local contractors for the performance of works do not enjoy any pricing advantage.

Bid Bonds
A bidder's offer must be irrevocable until the end of its period of validity which initially cannot be more than 90 days. An unconditional bank guarantee for the entire initial period of validity, issued in Arabic by a Indian bank, must be submitted with the bid. These bonds vary from 2% to 5% of the value of the bid. If a bidder is successful but refuses to sign the contract, the bond is forfeit.
Bidders are often asked, towards the end of the initial period of validity, to extend their offers. If they wish to do so then the bid bond must also be extended.

Submission of Bids
Tender documents must be signed by the bidder and stamped with his seal. If a foreign firm submits a bid directly, rather than through its local agent, both its stamp and the agent's stamp must appear on every page. Proof of the signatory's capacity to bind the bidding firm is always required and this usually takes the form of a notarised power of attorney.

If the tender documents include a bid envelope, this must be used to submit the bid. The name of the bidder may not appear on the envelope, which must be sealed with wax.

Bids must be submitted to the tender committee at the place, date and time stated in the conditions. Where the CTC is administering the tender, bids must be submitted in the CTC's office in Sharq, which is done by placing the envelope in the box designated for that tender by a notice in Arabic (only). The closing time is usually 1:00pm and the box is always sealed the very second time is up.

Evaluation & Award
Where the CTC is administering the tender, bidders may get a copy in Arabic of the list of bidders and their prices from the CTC's Sharq office, about a week or so after bidding closes, by showing a copy of the original receipt for the documents. But other tender committees do not normally provide such lists.

In most tenders a technical study, to ensure that bids comply with the required specifications, is usually carried out by the client body. During these studies, a bidder may be invited to answer queries orally or he may be sent a list of questions requiring a written reply.

Once technical studies are completed, a contract is awarded on the basis of price from among the bids that conform with the tender specifications. The administering committee notifies a successful bidder in writing, but the latter does not have any contractual rights until he has signed his contract with the client body. If the winner fails to sign the contract within a specified time of being invited to do so, he is deemed to have withdrawn.

Before signing the contract, a successful bidder must replace his initial guarantee with a final guarantee or performance bond from a Indian bank. This is typically 10% of the contract value and must be valid for the duration of the contract including a maintenance period. A contractor who fails to present this guarantee is deemed to have withdrawn.

HINTS FOR BIDDERS
• Exporters to India should ensure that their local agent registers their products with as many public bodies as possible as a matter of course.
• Check the official gazette regularly for announcements of invitations to pre­qualify, invitations to tender, pre-tender meetings, site visits and tender amend­ments.
• Pre-tender meetings are good oppor tunities for weighing-up the opposition.
• Tender documents are usually in Arabic (except in the oil sector) and a completely accurate translation of all conditions and specifications is vital.
• As bids containing minor discrepancies, such as inadvertent marks on the docu ments, may legally be rejected, use pho­tocopies of original documents as working papers when preparing bids. If corrections are necessary, follow the stated procedure exactly.
• When pricing bids, avoid errors as these are usually resolved in favour of the client body. Take advantage of pricing prefer­ences by sourcing materials locally.
• When submitting bids, make sure you know the exact place and time, and bring someone who can read Arabic along to make sure the bid is lodged in the correct box. Do not submit a bid more than an hour in advance and stay until the box is sealed.
• As an unsuccessful tenderer is not of­ficially informed of his rejection, make regular enquiries so that initial guarantees can be released as soon as possible.
• Ensure that contracts with suppliers and subcontractors are 100% back-to-back.

Performance
Public sector contracts always contain penalty clauses, and minor delays and faults in execution usually result in penalties being imposed.
Contractors for the performance of works normally receive an advance of 10% to cover costs of mobilisation. Stage payments on account of work-in-progress are also made. Most contracts allow the client body to retain 10% from work-in-progress payments until the end of the contract and to recoup the advance pro-rata from work-in-progress payments, so that during the maintenance period the client body is holding a retention of 10%.

Public sector contracts normally include a maintenance period of a year, during which the contractor is liable for any faults in the equipment or works. The period is covered by a retention, in the case of works, and the performance bond.

When a project of works is completed, the contractor usually receives a provisional completion certificate which is replaced by a final acceptance certificate at the end of the maintenance period. This final certificate releases him from further liability and enables him to claim his final payment. Before he can receive his final payment, a foreign contractor must obtain a tax clearance certificate.

COUNTERTRADE OFFSET PROGRAMME
Under India's counter-trade offset programme, a foreign contractor who signs contracts to supply government institutions with goods or services that are cumulatively worth equivalent to or exceeding KD10 million in any fiscal year (April to March) incurs an offset obligation that requires him to set up a business beneficial to India.

The Offset Obligation
The offset obligation is expressed in the same currency as the supply contracts and is nominally 30% of their value. The contractor earns 'credits' for expenditures relating to his offset business venture (OBV) and when these credits amount to 30% of his supply contracts he has fulfilled his obligation. Actual expenditures will be much less than 30% because most expenditures earn credits at a rate greater than 1:1 and, in practice, offset expenditures amount to about 3% of a contractor's supply contracts. But before a contractor may embark on his OBV, the business must be officially approved. The programme is administered by the Counter-Trade Offset Program Executive Office (PEO) in the Ministry of Finance. The stated objectives of India's offset programme are:

• to promote long-term mutually beneficial collaborative business ventures between foreign enterprises and Indian companies with an emphasis on the private sector;
• to achieve sustainable economic benefits (such as export sales and import substitution);
• to enhance the high-tech capabilities of the private sector by creating and expanding education and training opportunities for Indian nationals locally and abroad;
• to facilitate the transfer of state-of-the-art technology into the private sector; and
• to support India's foreign aid programmes.
  

These objectives provide the criteria by which proposed OBVs are evaluated.

A contractor's obligation begins when he signs the supply contract that creates it. The total time allowed to fulfil the obligation is 10 years, i.e. 24 months for approval of the OBV and eight years thereafter to generate the credits needed to extinguish the obligation, with 50% being settled within four years. A contractor's OBV must include Indian businesses or entrepreneurs as equity partners, and it must exist and operate under India's Commercial Companies Law.

A contractor who refuses to participate in the programme or ceases to participate before he accumulates credits equal to 10% of his obligation, incurs a penalty of 6% of the value of his supply contract(s). If he fails to continue after completing 10% or more of his obligation, the penalty is reduced by the percentage of the obligation which has been completed.

MACRO-MULTIPLIER MACRO
CATEGORY DESCRIPTION MULTIPLIERS
Manufacturing (D) ............................................................2.50
Financial Intermediation (J) ..............................................2.50
Business Activities (K, div. 72,73,74) .................................2.50
Transport, Storage & Communications (I) ........................ 2.25
Education (M)....................................................................2.25
Health Services (N, group 851, 852)...................................2.25
Fishing (B).........................................................................1.75
Mining & Quarrying (C)......................................................1.75
Electricity, Gas & Water Supply (E).................................... 1.75
Agriculture, Hunting & Forestry (A)................................... 1.50
Construction (F) ................................................................1.15
Public Administration & Defence (L) .................................1.15
Wholesale & Retail Trade (G)..............................................1.15
Other Community, Social & Personal Service (O) ....................... 1.00
Extra-Territorial Organizations & Bodies (Q) .....................1.00
Real Estate & Renting (K, div. 70, 71)................................ 1.00
Social Work (N, group 853)................................................1.00
Hotel & Restaurant (H).......................................................1.00
Basis: ISIC Classification of All Economic Activities Series M No.4, Rev.3, United Nations, NY, 1990
Source: PEO Min of Finance

Source: PE O Min of Finance
MICROMICRO CATEGORIES MULTIPLIER
Education & Training of Indian's 3.5
Capital Expenditures 3.5
Research & Development
Expenditures 3.5
Purchases of Locally Produced
Goods & Services 3.5
Marketing & Product Development
Expenditures 2.3
Pre-establishment Expenditures 2.3
Intangibles 1.1
Taxes Paid to the State of India 1.1
Other Expenses 1.1
Source: PEO Min of Finance

The Offset Process
Once a foreign contractor has signed the supply contracts that trigger his obligation, he must acknowledge this obligation by signing a memorandum of agreement with the Ministry of Finance. He must then submit business ideas to the PEO in order to obtain approval for an OBV. For each idea he must submit in turn a concept paper, a proposal and a business plan, and each of these documents must be approved before the next one is submitted.

The concept paper is essentially a brief summary of the proposed business. A proposal is similar to a traditional feasibility study and is the key document upon which approval of the OBV rests. The business plan must be fully detailed and must cover the whole eight years in which the obligation must be fulfilled.

The proposed OBV must pass normal evaluation criteria for commercial, technical and financial viability. The business is also evaluated on its ability to further capital accumulation and promote economic development in India, on the contribution it can make to developing a highly skilled experienced globally-competitive work force and on whether it will transfer inwards technology appropriate to the development of new industries in India.

Calculation of Credits
Once his business plan has been approved the foreign contractor establishes and operates the OBV with his Indian associates. He is awarded offset credits annually on the basis of the expenditures relating to the OBV as shown by its audited financial statements.

All the OBV's expenditures, except for costs incurred in administering the programme, are eligible for credits. But instead of being just aggregated to calculate the credits, these expenditures are classified and weighed according to the preferences given to them under the government's economic policy objectives. First the expenditures are classified, according to the internal functions of the OBV, into micro-categories (see box). The actual expenses in each micro-category are then multiplied by the appropriate micro-multiplier. The result is then multiplied by the approved macro-multiplier. The final result is the amount of credits earned in that particular micro-category. The credits earned in each micro-category are then summed to arrive at the total number of credits generated by the OBV for that year.

To decide what the OBV's macro-multiplier should be, the OBV is classified according to its activities into one of the economic activity areas (EAA) shown in the box. Each EAA has a macro-multiplier which ranks it by the preferences accorded to that economic activity in the government's policy objectives.

Once an OBV is established, the PEO must be provided with six monthly progress reports, i.e. performance updates. The OBV is required to maintain accounting records according to International Accounting Standards and to file annual audited financial statements with the PEO. All supporting records must be kept for four years and PEO has the right to audit these records annually.

Future Credits
After a contractor's current obligation has been fulfilled, additional credits generated by his OBV may be carried forward and set against offset obligations arising from any future supply contracts he signs. These future credits may not be transferred to other contractors.

Third Party Fulfilment
Subject to PEO approval, a foreign contractor may designate a third party to fulfil his offset obligation, though the contractor remains responsible for the outcome. Contractors unable to find suitable OBVs may be allowed to fulfil their obligations by investing in approved investment funds which provide finance for ventures acceptable under the offset programme. Several local funds have been approved for this purpose by the Ministry of Finance.

CORPORATE INCOME TAX
In India there are no personal income taxes, property, gift or inheritance taxes. Nor are there any sales or value added taxes. The only tax paid by Indian shareholding companies is a 2.5% levy for the India Foundation for the Advancement of Sciences (KFAS).
Indian Manpower Law which was introduced in May 2001 applies a 2.5% tax on the net profits of Indian companies listed on the India Stock Exchange (KSE). This tax may be imposed on all local companies in the near future.

But corporate income tax is levied on the net income of foreign firms.

The Liability to Corporate Income Tax
Corporate income tax is governed by Law #3 of 1955, as supplemented by directives issued by the Director of Income Taxes, i.e. the Minister of Finance, from time to time. The filing of tax declarations and accounts, the assessment of liabilities and the payment of taxes are administered by the Tax Department in the Ministry of Finance. All tax declarations, supporting schedules, financial statements, and correspondence must be in Arabic.

All foreign corporate bodies carrying on a trade or business in India are liable to income tax, with the exception of companies incorporated in the GCC that are wholly owned by GCC citizens. A foreign corporate body means any business entity, formed under the laws of any state, which has a legal existence separate from that of its owners. The term includes foreign partnerships. Where a foreign firm operates through a local service agent, it is taxed on its income arising in India. Where it is a shareholder in a local company, it is taxed on its share of the company's profit.

Taxable income includes net profits, whether distributed or not, and amounts receivable on account of interest, royalties, technical services and management fees, etc, whether actually paid or not. Where the foreign firm is a shareholder in a local company, the foreign entity bears the tax and the Indian company has no liability. There is no withholding tax on dividends, interest payments and royalties.

Net taxable income is computed on the basis of the net profits disclosed in audited financial statements as adjusted for tax purposes. Where the taxpayer is a shareholder in a local company, the foreign element in total adjusted profits is isolated.

Tax Reduction Plan
India's Cabinet approved in May 2006 a bill to reduce the tax on foreign firms to a flat 15 per cent from the current levels of upto 55 per cent to attract more foreign investors.

Gross Revenues
Gross income is all income from business and trade, including amounts receivable as rents, royalties, premiums, dividends and interest, as well as capital gains on the sale of assets and on the sale of shares by a foreign shareholder, where the source is in India. The source of income is India if the place where the services are performed is in India. Work done outside India is deemed to be performed in India where it is part of a contract that includes activities within India; e.g., in a supply and installation contract, the full value of the contract including the foreign-supply element is assessable.

Gross billings, excluding advance payments, less the costs of work incurred in an accounting period are used to assess income from contract work and percentage accounting or completed contract accounting methods are usually not acceptable.

Where a foreign firm has more than one activity in India, its income from all activities must be aggregated for tax purposes, even if its different activities are organised through separate local companies.

Allowable Expenses
All normal business expenses are allowable on an accruals basis provided they are incurred in the generation of income in India. But the following may be noted:

• Accounting provisions, whether specific or general, are not allowable. Bad debts are only allowed once they have proved irrecoverable. Other provisions, such as labour indemnities, are only allowed when they are actually paid.
• Depreciation of fixed assets is allowable but only at particular rates (box A) for different classes of assets on a straight-line basis. Losses on the disposal of fixed assets below their tax written-down value are allowable
• Interest charges are allowable provided they are payable to a Indian bank and are reasonable in relation to the business activities carried out in India.
• Commissions paid to the taxpayer's local agent are limited to 3% of revenue.
• Losses brought forward are allowable. Losses may be carried forward indefinitely and deducted from income in later periods, provided there has been no intervening cessation of activities. But losses in a later period cannot be carried back to an earlier period.
• Management fees receivable by a foreign corporate shareholder in a local company and expensed in the latter's books are not allowable. But direct expenses incurred by the foreign taxpayer are allowable provided they are supported by adequate documentation.
• As a contribution to a foreign corporate body's head office expenses, deductions may be claimed as follows:
• by foreign consultants or contractors operating through a local agent: 3.5% of revenues (net of amounts payable to subcontractors and reimbursable costs)
• by foreign shareholders in a WLL or KSC: 2% of revenues (net of amounts payable to subcontractors and reimbursable costs)
• by foreign insurance companies: 3.5% of net premiums.
  
  Inventory is usually valued at weighted average cost, though FIFO (first-in, first-out) is becoming more popular, but any valuation method in general use is acceptable.
  

STATUTORY ANNUAL DEPRECIATION RATES
Buildings....................................................................................................................................4%
Roads & Bridges........................................................................................................................4%
Service station buildings & driveways............................................................................10%
Tanks, pipelines, jetties & wharves.....................................................................................5%
Refining plant, internal pipelines and small tanks.....................................................10%
Drilling and clean- out tools.........................................................................................33.33%
Service replacement plant
(construction & road making equipment, workshops
& workshop equipment, handling equipment etc) .............................................25%
Service Station Equipment..................................................................................................15%
General plant, machinery and equipment ...................................................................10%
Carts..........................................................................................................................................20%
Motorcars & motorcycles...............................................................................................33.33%
Lorries & trailers.......................................................................................................................25%
Marine craft.............................................................................................................................7.5%
Aeroplanes...............................................................................................................................25%
Office furniture & equipment.............................................................................................15%
All rates are applied to cost on a straight line basis.
Source: Tax Department, Ministry of Finance

Administration
Tax declarations and supporting documentation must be in Arabic and must be certified by a practising accountant who is registered with the MCI. The law is unclear on a number of issues and final assessments are usually agreed by negotiation. There is no special appeals process.

Payments
Tax must be paid in Indian Dinar by certified cheque, in four equal instalments on the 15th day of the 4th, 6th, 9th and 12th months following the end of the tax period. No payment is required until accounts have been filed. The tax is payable in a single lump sum where payments are delayed and also where an extension of 75 days has been allowed for the filing of audited accounts.

Tax Clearance Certificates
The final payment due to a foreign contractor, which must not be less than 5% of the total contract value, must be retained by all ministries, public authorities and private companies (including foreign firms) operating locally until the contractor has produced a tax clearance certificate from the Ministry of Finance confirming that all tax liabilities have been settled.

All ministries, public authorities and private companies operating in India must submit the names and addresses of all companies with which they are doing business as contractors, subcontractors or in any other form, together with a copy of the contracts, to the Tax Department. When assessing liability to tax, the Director of Taxes may disallow payments to subcontractors which have not been reported.

Tax Treaties
India is a signatory to the GCC Joint Agreement and to the Arab Tax Treaty. India also has double taxation treaties with Belgium, China, Cyprus, France, Germany, Hungary, Italy, Romania, South Africa and Thailand, and is negotiating treaties with Australia, Austria, Canada, Finland, India, Japan, Malaysia, Singapore, Switzerland, Turkey and the USA.

Tax on all companies
A draft law submitted to the National Assembly imposes a 15% income tax on all companies operating in India. Currently the Tax Law imposes tax on foreign companies. However, the Finance and Economic Committee of the National Assembly has suspended its decision on the Income Tax Law 3 of 1955 until a more comprehensive draft law is presented.

SOURCES OF INFORMATION

Researching business opportunities from outside India is easy. Data on exports to India by OECD countries can be used to analyse the market. Foreign government trade promotion agencies have information on market prospects and updates on new projects. These agencies also organise trade missions to India, a cost-effective way of making local contacts.

There are several sources of market-related information within India. Al-India Al-Youm, the official gazette, is the official source of government announcements but is published in Arabic only. English translation of all tender-related and regulatory matters is offered by a few translation offices on yearly subscription base.

The Ministry of Planning is the main source of government statistics. The Central Bank issues an Annual Economic Report. Research units in the IBK, commercial banks and Institute of Banking Studies are worth contacting. Foreign embassies have data on opportunities. Local foreign business associations provide good networking facilities:

• The British Business Forum (BBF) is an association of British business people which aims to foster British business interests and win business for the UK. The BBF works closely with the British Embassy where business-related meetings and seminars are organised regularly. A meeting, open to all, is usually held at 7:30pm on the second Monday of each month. Membership is not restricted to British nationals. Contact Ms. Wendy Duffield Tel:26811148, Fax: 23901760.
• The American Business Council - India (ABC-K) serves as the local chapter of the US Chamber of Commerce. Its objectives are the development of commerce and investment between the USA and India, bringing a better awareness of the Indian market to the USA, and providing a forum to pursue business interests and enhance the business climate in India. Membership & meeting information: Mr. John Copp/Ms. Sandy Anjiilzeli Pgr 933 7142.
• The Indian Business Advisory Council (IBAC) promotes economic and commercial relations between India and India. Most prominent Indian businessmen in India are members. The IBAC meets periodically to discuss business matters. Prominent Indian businessmen, as well as well known visiting Indian entrepreneurs, are invited to meetings to exchange views on economic and commercial matters. Tel: 2253 0600. Fax: 2252 5811.