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Emerging Legal Issues in The Incorporation of Start-Ups in India

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Educational Resurgence Journal Vol. 5, Issue 1, July 2022 e-ISSN 2581-9100
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Emerging Legal Issues in The Incorporation of Start-Ups in India

Dr (Cs.) Mala Kumari Upadhyay

Dean, Academics
St. Xavier’s College of Management and Technology, Patna

______________________________________________________________________________

Abstract

The first stage of a company’s operations, when the company starts operating and functioning, is
termed a Start-up. Start-ups are founded by those entrepreneurs who want to develop a new
product or service for which they are likely to believe there is demand. These are companies or
Joint ventures focused on a single product or service the founders want to bring to market. India
is a developing country and needs more than 100 million jobs a year, and the jobs generated are
mostly not from big enterprises but start-ups. Start-up entrepreneurship is crucial because it
brings innovations, employment, and competitive dynamics into the business environment and
enterprises, contributing significantly to the country's economic development. Realizing the
turnover achieved through the start-ups and the vast numbers of jobs that can be created by
facilitating start-ups, the market controller Securities and Exchange Board of India (SEBI) has
eased the use of start-up regulation, thereby reducing the flow of funds from the market to start-
up. With the increase in the number of Start-up in the economy, the legal issues involved with the
initiation and functioning of start-ups have become very significant.

This research paper will analyze the impact of start-ups, the growth of start-ups, the ecosystem of
start-ups, and its effect on the Indian economy and the economy’s growth.

Key Words: Start-ups, Indian Economy, India, Legal Issues

_____________________________________________________________________________________________________________________
Received- 24/06/2022, Accepted - 2. One of the most important objectives is to
23/07/2022, Published Date-31/07/2022 analyze the status of Start-ups in India ever
since its initiation.

3. Yet another objective of this Research

The objectives of the Study Paper is to analyze the contribution of start-
ups to the growth of the Indian Economy.
1. This Research Paper will help understand
the meaning of Start-ups in India and why 4. the essential objective of this Research
they are significant to the Indian Economy. Paper is to determine the legal requirements
and formalities required for establishing,
initiating, and executing a project.

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Limitations of the Study of India towards Innovation and ecosystem of

startups. The main objective of the research
1. The first limitation is that this paper is paper is to establish a relationship between
based on Secondary Data, and it is not GDP and the startups registered across the
based on Primary data. states and countries, measuring the
effectiveness of various schemes and also
2. Time is also a significant limitation
analyzing the legal issues faced by them. It is
while writing a Research Paper.
found that the startup India program is a
Research methodology significant step towards development since it
tends to overcome the majority of the
The problem statement is legal issues difficulties building up the effectiveness in
associated with startups in India. The the ecosystem. The policy is set up, but
dependent variable is GDP GNP import- success depends on its execution. New policy
export balance of payment foreign reserve reforms reflect strong development Desires
per capita GDP, and the Independent variable and resonate with the zeal and zest of the
is startups. youth.
Research Design: there are three types of
Minakshi Bindal, Bhuwan Gupta, and
Research Design exploratory Research
Sweety Dubey, in the paper “Role of startups
Design, Descriptive Research Design, and
on the Indian economy,” talk about the
Causal Research Design. In this study, I have
analysis of the initiatives for startups in India,
taken descriptive Research Design.
trying to understand the problems faced by
Sources of data: there are two types of data: the startups to study the impact of startups on
primary and secondary data. In this research, people, to learn the awareness about the
I have taken secondary data for the study. startups. It is based on secondary data. It is
Data Collection tools used are RBI reports, found that the government must help startups
research publications, newspapers, reports of promote themselves not just in India but
DIPP, etc., for the analysis. across the globe, as well as create friendly
policies so that Indian startups get a
Review Of Literature significant boost and can further generate
better employment.
Arihant Jain, in his article “A study on the
impact of startups on the Indian economy, “ In the paper economic entrepreneurship by
gives the fundamental points of interest to put Hans Westland, startups and their effects on
the present startup environment, which is local development in the case of Sweden, the
Innovative, inside the Indian setting and current empirical entrepreneurship literature
feature position of the related difficulties shows a positive correlation between
confronting India today by contrasting entrepreneurship and economic growth;
policies of various Nations and States to however, the mechanism by which
discover which of them is most favorable and entrepreneurship exerts its positive influence
depicts endeavors that the Legislature makes is not apparent. The net result of startup

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employment on GDP can be harmful, at least innovation. There are over 14600 startups
in the short run, since efficient new recognized under startup India that has
companies may lead to the closure of less spread across 479 districts covering all 29
efficient ones. Based on another function that states and 6 union territories to provide
economic entrepreneurship in the form of growth startups funding that is funding to
startup creates on absorb supply-side effects startups of fund bracket if f bracket close of
on the first level bracket fixed, roller 2004 rupees 10000 crores has been set up. This
bracket closed. Entrepreneurship social supports innovators and risk takers in
capacity on community-level bracket creating a new India. The government has
Westmoreland and Walton 2003 bracket already committed rupees 1611 point 7 crores
completed this paper studies the connection 232 venture capital funds through FFS. The
between startups and local development at funds contributed by governments have
the municipal level in Sweden between 2000 enabled venture capitalist funds to raise a
and 2008. We use a unique database purpose of over rupees 7000 cross, which is
including not only total start-ups but data on available for startups. When these committed
startups divided into 6 branches to study the funds complete their fundraising process, a
impact of entrepreneurship on population and total of Rs 13888 cross will be available to be
employment. The analysis is performed on all used by startups. Does government
municipalities and by Municipal time and contribution have catalyzed funding for
growth rate. startups? Change startups being small
entities, play a dominant role in economic
Introduction: In August 2015, Honorable growth. The reason behind this is that they
Prime Minister Shri Narendra Modi generate jobs, which means less
announced the launch of the national flagship unemployment and an economy that is
initiative - with a mandate to promote and refining and improving. Startups also create
encourage young entrepreneurs of a country. competition and inspire indivisible to be
Envisioned the initiative’s aim to transform more pioneering and inventive because you
India into a Startup Nation with a government want to Conceive novel ideas to prevent
of "job creators instead of job seekers.” The present, which does even more origination
country has moved to the third position and and creativity. Start-ups produce more
has the fastest-growing base of startups Industries over time, and if they progress
worldwide. enough, they can develop into money-
Shri Narendra Modi Ji launched this initiative making engines not just for the owners but
with an action plan with 19 action points also for the personnel that works for them and
focused on simplification, handholding the shareholders. Since the number of
funding support, and industry Academy startups is growing, competition is also
partnership and incubation. The industrial increasing. But healthy competition is
policy and promotion department has been significant for startups and customers to
actively taking requisite measures to curate the startup environment. As of now,
encourage Entrepreneurship and promote many startups Sahab introduced the latest

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technologies like the internet of things on the prior experience/ turnover criteria for
artificial Intelligence and Robotics accept. regular companies answering Daman tenders.
Most of these technologies I've joined
6. Research and development facilities- new
companies outsource data to startups
research parks will be set up to provide
nowadays that will help search startups’ cash
facilities to startups in the Research
flow.
Development sector.
Benefits to startups by the Indian government
7. No time-consuming compliances- various
1. simple process- compliances have been simplified for
startups to save time and money. Full stop
The Government of India has launched a
startup shall be allowed to self-certified
mobile app and website for startup ITI
compliance bracket through the startup
registration. Anyone interested in setting up a
mobile app bracket closed with nine labor
startup can fill up a simple form on the
and three environment laws.
website and upload certain documents; the
entire process is entirely online. 8. That's saving for investors- people
investing the capital gains in the
2. cost reduction- it also provides a list of
government’s venture fund will get
facilitators of patents and trademarks. We
exemption from capital gains. This will help
will offer high-quality Intellectual Property
startups to attract more investors.
Rights services, including a brief
examination of patents, at lower fees. The 9. Choose your investor- after this plan, the
government will be an all-facilitator field, startups will have an option to choose
and the startup will be only the statutory fees. between the venture capitalists giving them
They enjoy an 80% reduction of cost in the the liberty to choose their investors.
filing of patents.
10. Easy exit- in case of exit, a Startup can
3. Easy access to funds- aur 10,000 rupee close its business within 90 days from the
fund is set up by the government to provide date of application for winding up.
funds to the startups as venture capital. The
Eligibility for registration under startups- as
government is also giving guarantees to the
per the Startup India Action Plan, the
lenders to encourage banks and other
following conditions must be fulfilled to be
Financial Institutions to provide venture
eligible as a startup.
capital.
1. Being incorporated or registered in India
4. Tax holiday for 3 years- startups will be
up to 10 years from its incorporation date.
exempted from income tax for three years
provided they get a certification from the 2.. Is a private limited company or registered
inter-ministerial board bracket (IMB). as a partnership firm or a limited liability
partnership
5. Apply for tenders- startups can apply for
government tenders. They are exempted from

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3. Has an annual turnover not exceeding g. It should not be a result of any business
rupees 100 crores for any of the financial already in existence, i.e., a company
years since incorporation/ registration. incorporated as a result of the scheme of
rearrangement.
4. Is working towards innovation for
development or improvement of products or Legal issues faced by startups in India-
processes or services or if it is a scalable
1. Licensing and permit issue- the startups
business model with high potential of
may require various licenses, permissions, or
employment generation or wealth creation.
formats to execute their ideas. Due to a lack
It is essential to know that an entity formed of legal knowledge, the startup may end up
by splitting up or reconstructing an existing paying penalties and even be ethical or
business shall not be considered a startup. illegal. The requirement of the license,
Also, an entity will not be called a Startup permits, and permits may vary from business
after- to business, so the person should know the
local laws, rules, and regulations before
a. Completion of 10 years from its
starting a business. The other issue with
incorporation/ registration date, or
licenses is that sometimes it’s not very quick
b. Achieving turnover in any previous year and easy to get a permit from the government
more than rupees 100 crores. authorities and requires a lot of time and
money. Some of the licenses needed by the
The startups to avail of the benefits of a
companies are registration certificates for
Startup need to meet the following eligibility
GST registration for Sai license import and
criteria-
export code Udyog Aadhaar registration
a. The company must be a private limited exception.
company or a limited liability partnership.
2. GST registration- in the current scenario,
b. The firm must have obtained approval most startups look at their future as an E-
from the department of industrial policy and Commerce businesses. For such eCommerce
promotion(DIPP). business, GST registration is mandatory for
the company was turnover is equal to, or
c. It must have a recommendation letter by
more than 40 lacs should get themselves
an incubation.
Register from the process of registration is
d. It must provide innovation schemes or called GST registration they had three times
products. of companies who should get GST
registration. Failure to do this will be
e. It should be a new form and not older than
considered an offense following startup
5 years
businesses should mandatorily get GST
f. The total turnover of the company should registration-
not exceed 25 crore rupees.
a. Casual Taxable person,
b. Nonresident taxable person.

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c. E-commerce aggregators, 5. Data protection and privacy issues- in

the area of digitalization, everyone is using
d. Those who are paying through reverse
any kind of internet device beta smartphone
charge mechanisms.
for APC over the covid-19 pandemic were
3. Advertisement and marketing- like an icing on the cake for the field of
advertising and marketing are significant for digitalization, and many businesses offices
any startup or any other form of business but Court shifted the work to the online mode
advertising false claims of steam commerce which brings his opportunities for the
CD or sending this may give rise to severe startups. In the digital and World, privacy is
criminal penalties. If we blow away the a myth. Consider a real example: suppose
goodwill and reputation of a firm and that if you download and login to a health
startups, such mistakes may be like stepping card to check some supplements, you enter
over tiny growing seedlings.— your phone number, address, name, and the
technique1994 etc. terms and conditions that pop up even
without reading it. What happens to your
4. Infrastructure-related zonal laws details, like your phone number and address?
allocation of property for the office, standard And it's time when you open YouTube;
warehouse service, center manufacturing Google Chrome will get to see ads based on
units, etc., is another major challenge for what you searched on the health card. The
startups in India. The startup should be aware startups and other E-Commerce businesses
of the local laws regarding the commercial record and use personal details, including
use of Agricultural and Commerce schools, search history, to stop this example, and
hospital property, etc. In India, land comes conclude that the startup should not access
under the domain of State Government, and the users' private information without their
the laws related to land vary from state to permission and should not ask for licenses
state. The startup must be aware of the that are not needed by the websites of
general laws and laws that deal with the use applications. It would be done by drafting a
of land in a particular area for example- the privacy policy in a short, simple, and
local municipality authority in an area can summarized manner and in the regional
pass a law for building the use of any language so that before finding it in any
property or land for industrial or commercial applications, the user will easily read and
purposes as it is a residential area. The understand the privacy policy terms and
journal authorities divide a locality into eight conditions.
parts: residential, commercial, industrial,
public and semi-public utilities, open areas 6. Protection of intellectual property
parts playgrounds transport, and rights- the issue is that the start should also
communication for agricultural use. The check what they are planning to do or what
purpose of the general law is to separate they are planning to sell is already protected
residential areas from commercial areas. so that they may not face problems like
Trademark infringement or other IP
violations after they invest a significant sum

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of money in the business. The requirements adjoining mines and cause the heavy loss.
of intellectual property rights protection by The court held Ryland liable for strict
value from one state to another. Statics to liability The startup should take care that it
seek to protect the following Intellectual should be careful in handling and managing
Property Rights, i.e., patents, copyrights, raw materials, no I am fire vibrations, smell
Trademark or service mark trade secrets, and etc.
confidentiality agreements.
9. Ethical issues- the purpose of a Startup is
7. Contract management- an agreement to earn profit but while earning profit ethics
enforceable by law is known as a contract. A should also be noted not stop the start of
Startup must be careful while drafting a should comply with the laws and regulations
contract as well as while signing MIT. and at the same time it should not forget the
Startup goes to several contracts with duty towards the community people and
suppliers, employees and others. For the customers and the company.
purpose of reference, it would be ideal for a
10. Dealing with counterfeit goods- the
Startup to go through the sample contract
startup should avoid the sale of food
available online of pre-existing companies
beverages, health supplements medicine
which may help them to draft a good contract.
Auto Parts clothes beauty products and
Agreement with Ho founders- the startup pirated software. The US trade representative
should make a proper deal with the co- offices inverted, notorious market inverted
founders or partners in written form so as to commas closed report has marked Snapdeal
avoid any kind of dispute in the Future. Like and Amazon for the sale of counterfeit
what will be the distribution of profits, what products. The sale and promotion of such
will be the capital investment on roles and goods are detrimental to the startup's
responsibilities of the co-founders what will reputation, the manufacturer as well as the
be the salaries decision making percentage of consumers.
ownership of each founder e.t.c.
Annual mandatory compliance for startups in
8. Tortious liabilities- Tortious liabilities India- in India startups must add her to a
may arise when someone does an act number of regulations imposed by numerous
prohibited by law or omitted to do any act statutes. These responsibilities include filing
which is obliged to be done by law. Startup taxes and other returns on a regular basis in
my face tortious liability is if it is not careful board and other meetings, and keeping
about its acts. The relevant liabilities which statutory books and accounts among others.
may arise is strict liability- the rule of strict
Following are the Annual compliance
liability was evolved from the famous
checklist for startups-
Rylands vs Fletcher case where in Ryland
builds employed laborers on his land to make a. Appointment of Auditors- it is important
a reserve where they found an unused mine to understand what statutory audit is and what
shaft and the forgot to seal the mine shaft it is for. The distinction between a statutory
which later on caused flooding in the audit and any other audit is negligible. The

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main goal of this audit is to see if the as corporate governance. The company has
company is presenting accurate financial been giving rules on how to direct a
information. Suggest Bank balances and government itself so that it may achieve its
financial activities. The cooperation of goals and objectives in a way that adds value
points and auditor for this purpose. Will be to the organization and benefits all the
appointed for a five-year term and if the stakeholders in the long run. The company
company is new, the auditor must be hired governance is carried out and is based on
within one month of the company's launch. accountability, fairness , transparency and
responsibility.
b. Annual General Meeting(AGM)-
Annual General Meeting of the shareholders There are many challenges that are faced by
of a private corporation is required to be startups in India while establishing good
conducted every year. It is required that it be corporate governance that can include insider
held in the final six months of the financial trading, disclosure and accountability and
year. Certain important matters are discussed transparency , succession planning, and the
at the AGM such as the approval of financial necessity of judicial reforms.
statements the appointment of auditors the
Conclusions findings and suggestions-
salary or payment of directors' declaration of
dividend and so on can change the world and becoming more and
more startups will grow with Innovation and
c. Board meetings- the first meeting within
creativity. Entrepreneurship is the only way
30 days of Incorporation and a minimum of
to enhance the economic growth of a nation
two such board meetings should be held one
non stop a small idea can be turned into a big
in each half calendar year.
and innovative solution which can change
d. Reports of directors- according to the our future. So if we have an idea don't block
Companies Act 2013, every director is our dreams because of fear of failure in taking
required to file annual reports detailing their risks. Develop your Idea into a Startup and
directorship in other companies. This must be contribute towards the growth of our nation.
done in writing an official report and has to We can conclude that startups are important
be given TDS returns accepted. for the economic growth of a nation it
positively affects India's economy however
e. Income tax- the following are the
government needs to promote and create
conditions for income tax compliance-
more startups in India so that it helps to
income tax returns, tax audit reports periodic
increase the GDP of India because currently
returns ( Monthly, Quarterly, annual GST,
the GDP of India is very low and foreign
TDS Returns )
reserves to install government encouraging
Challenges faced by startups in people to start doing business and what steps
establishing good corporate governance- are being taken for it which is actually good
for the bright future of Indian startup industry
The set of concepts, procedures and
this will certainly boost India's economy as
processes that govern a form are referred to
well as the GDP in the upcoming years.

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Suggestions- the government should think Product-based learning to sperm

about building a state state ecosystem my entrepreneur-thinking and integrating
establishment startup policy startup portal for technology and computer science into all the
each state. Government should provide more parts of the sets of courses so
incentives for startups and it should organize entrepreneurship has to be taught at an early
events to promote entrepreneurial activities stage.
and create more innovations. The
government should also create awareness
about startup initiatives and real-time
References:
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https://ideas.repec.org/p/wiw/wiwrsa/ersa11 https://www.startupindia.gov.in/
p327.html
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Citation of this article

Mala Kumari Upadhyay. (2022). Emerging Legal Issues in The Incorporation of Start-Ups in
India. Educational Resurgence Journal, 5(1), 59–69.
https://doi.org/10.5281/zenodo.6908221

69 | Educational Resurgence Journal © 2022| Published by Dr D. Y. Patil College of Education (B.Ed. & M.Ed.) Pimpri Pune, India

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