Q. 1. What are the forms in which business can be conducted by a foreign company in India?
Ans. A foreign company planning to set up business operations in India may:
Incorporate a company under the Companies Act, 1956, as a Joint Venture or a Wholly Owned Subsidiary.
Set up a Liaison Office / Representative Office or a Project Office or a Branch Office of the foreign company which can undertake activities permitted under the Foreign Exchange Management (Establishment in India of Branch Office or Other Place of Business) Regulations, 2000.
Q.2. What is the procedure for receiving Foreign Direct Investment in an Indian company?
Ans. An Indian company may receive Foreign Direct Investment under the two routes as given under:
i. Automatic Route
FDI is allowed under the automatic route without prior approval either of the Government or the Reserve Bank of India in all activities/sectors as specified in the consolidated FDI Policy, issued by the Government of India from time to time.
ii. Government Route
FDI in activities not covered under the automatic route requires prior approval of the Government which are considered by the Foreign Investment Promotion Board (FIPB), Department of Economic Affairs, Ministry of Finance. Application can be made in Form FC-IL, which can be downloaded from http://www.dipp.gov.in. Plain paper applications carrying all relevant details are also accepted. No fee is payable.
The Indian company having received FDI either under the Automatic route or the Government route is required to comply with provisions of the FDI policy including reporting the FDI to the Reserve Bank as stated in Q 4.
Q.3. What are the instruments for receiving Foreign Direct Investment in an Indian company?
Ans. Foreign investment is reckoned as FDI only if the investment is made in equity shares, fully and mandatorily convertible preference shares and fully and mandatorily convertible debentures with the pricing being decided upfront as a figure or based on the formula that is decided upfront. Partly paid equity shares and warrants issued by an Indian company in accordance with the provision of the Companies Act, 2013 and the SEBI guidelines, as applicable, shall be treated as eligible FDI instruments w.e.f. July 8, 2014 subject to compliance with FDI scheme. The pricing and receipt of balance consideration shall be as stipulated in terms of A.P.(DIR Series) Circular No.3 dated July 14, 2014 as modified from time to time.
Any foreign investment into an instrument issued by an Indian company which:
gives an option to the investor to convert or not to convert it into equity or
does not involve upfront pricing of the instrument as a date would be reckoned as ECB and would have to comply with the ECB guidelines.
The FDI policy provides that the price/ conversion formula of convertible capital instruments should be determined upfront at the time of issue of the instruments. The price at the time of conversion should not in any case be lower than the fair value worked out, at the time of issuance of such instruments, in accordance with the extant FEMA regulations [valuation as per any internationally accepted pricing methodology on arm’s length basis for the unlisted companies and valuation in terms of SEBI (ICDR) Regulations, for the listed companies] without any assured return.
Q.4. What are the modes of payment allowed for receiving Foreign Direct Investment in an Indian company?
Ans. An Indian company issuing shares /convertible debentures under FDI Scheme to a person resident outside India shall receive the amount of consideration required to be paid for such shares /convertible debentures by:
(i) inward remittance through normal banking channels.
(ii) debit to NRE / FCNR account of a person concerned maintained with an AD category I bank.
(iii) conversion of royalty / lump sum / technical know how fee due for payment or conversion of ECB, shall be treated as consideration for issue of shares.
(iv) conversion of import payables / pre incorporation expenses / share swap can be treated as consideration for issue of shares with the approval of FIPB.
(v) debit to non-interest bearing Escrow account in Indian Rupees in India which is opened with the approval from AD Category – I bank and is maintained with the AD Category I bank on behalf of residents and non-residents towards payment of share purchase consideration.
If the shares or convertible debentures are not issued within 180 days from the date of receipt of the inward remittance or date of debit to NRE / FCNR (B) / Escrow account, the amount shall be refunded. Further, Reserve Bank may on an application made to it and for sufficient reasons permit an Indian Company to refund / allot shares for the amount of consideration received towards issue of security if such amount is outstanding beyond the period of 180 days from the date of receipt.
Q.5. Which are the sectors where FDI is not allowed in India, both under the Automatic Route as well as under the Government Route?
Ans. FDI is prohibited under the Government Route as well as the Automatic Route in the following sectors:
i) Atomic Energy
ii) Lottery Business
iii) Gambling and Betting
iv) Business of Chit Fund
v) Nidhi Company
vi) Agricultural (excluding Floriculture, Horticulture, Development of seeds, Animal Husbandry, Pisciculture and cultivation of vegetables, mushrooms, etc. under controlled conditions and services related to agro and allied sectors) and Plantations activities (other than Tea Plantations) (c.f. Notification No. FEMA 94/2003-RB dated June 18, 2003).
vii) Housing and Real Estate business (except development of townships, construction of residential/commercial premises, roads or bridges to the extent specified in Notification No. FEMA 136/2005-RB dated July 19, 2005).
viii) Trading in Transferable Development Rights (TDRs).
ix) Manufacture of cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes.
(Please also see the website of Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India at www.dipp.gov.in for details regarding sectors and investment limits therein allowed, under FDI)
Q.6. What is the procedure to be followed after investment is made under the Automatic Route or with Government approval?
Ans. A two-stage reporting procedure has to be followed :
On receipt of share application money:
Within 30 days of receipt of share application money/amount of consideration from the non-resident investor, the Indian company is required to report to the Foreign Exchange Department, Regional Office concerned of the Reserve Bank of India, under whose jurisdiction its Registered Office is located, the Advance Reporting Form, containing the following details :
Name and address of the foreign investor/s;
Date of receipt of funds and the Rupee equivalent;
Name and address of the authorised dealer through whom the funds have been received;
Details of the Government approval, if any; and
KYC report on the non-resident investor from the overseas bank remitting the amount of consideration.
The Indian company has to ensure that the shares are issued within 180 days from the date of inward remittance which otherwise would result in the contravention / violation of the FEMA regulations.
Upon issue of shares to non-resident investors:
Within 30 days from the date of issue of shares, a report in Form FC-GPR- PART A together with the following documents should be filed with the Foreign Exchange Department, Regional Office concerned of the Reserve Bank of India.
• Certificate from the Company Secretary of the company accepting investment from persons resident outside India certifying that:
The company has complied with the procedure for issue of shares as laid down under the FDI scheme as indicated in the Notification No. FEMA 20/2000-RB dated 3rd May 2000, as amended from time to time.
• The investment is within the sectoral cap / statutory ceiling permissible under the Automatic Route of the Reserve Bank and it fulfills all the conditions laid down for investments under the Automatic Route,
• OR
• Shares have been issued in terms of SIA/FIPB approval No. --------------------- dated -------------------- (enclosing the FIPB approval copy)
• Certificate from Statutory Auditors/ SEBI registered Merchant Banker / Chartered Accountant indicating the manner of arriving at the price of the shares issued to the persons resident outside India.
Q.7. What are the guidelines for transfer of existing shares from non-residents to residents or residents to non-residents?
Ans. The term ‘transfer’ is defined under FEMA as including "sale, purchase, acquisition, mortgage, pledge, gift, loan or any other form of transfer of right, possession or lien” {Section 2 (ze) of FEMA, 1999}.
The following share transfers are allowed without the prior approval of the Reserve Bank of India
A. Transfer of shares from a Non Resident to Resident under the FDI scheme where the pricing guidelines under FEMA, 1999 are not met provided that :-
i. The original and resultant investment are in line with the extant FDI policy and FEMA regulations in terms of sectoral caps, conditionalities (such as minimum capitalization, etc.), reporting requirements, documentation, etc.;
ii. The pricing for the transaction is compliant with the specific/explicit, extant and relevant SEBI regulations / guidelines (such as IPO, Book building, block deals, delisting, exit, open offer/ substantial acquisition / SEBI SAST, buy back); and
iii. Chartered Accountants Certificate to the effect that compliance with the relevant SEBI regulations / guidelines as indicated above is attached to the form FC-TRS to be filed with the AD bank.
B. Transfer of shares from Resident to Non Resident:
i) where the transfer of shares requires the prior approval of the FIPB as per the extant FDI policy provided that :
a) the requisite approval of the FIPB has been obtained; and
b) the transfer of share adheres with the pricing guidelines and documentation requirements as specified by the Reserve Bank of India from time to time.
ii) where SEBI (SAST) guidelines are attracted subject to the adherence with the pricing guidelines and documentation requirements as specified by Reserve Bank of India from time to time.
iii) where the pricing guidelines under the Foreign Exchange Management Act (FEMA), 1999 are not met provided that:-
The resultant FDI is in compliance with the extant FDI policy and FEMA regulations in terms of sectoral caps, conditionalities (such as minimum capitalization, etc.), reporting requirements, documentation etc.;
The pricing for the transaction is compliant with the specific/explicit, extant and relevant SEBI regulations / guidelines (such as IPO, Book building, block deals, delisting, exit, open offer/ substantial acquisition / SEBI SAST); and
Chartered Accountants Certificate to the effect that compliance with the relevant SEBI regulations / guidelines as indicated above is attached to the form FC-TRS to be filed with the AD bank
iv) where the investee company is in the financial sector provided that :
The FDI policy and FEMA regulations in terms of entry route, sectoral caps, conditionalities (such as minimum capitalization, etc.), reporting requirements, documentation etc., are complied with.
Transfer of shares/ fully and mandatorily convertible debentures by way of Gift:
A person resident outside India can freely transfer shares/ fully and mandatorily convertible debentures by way of gift to a person resident in India as under:
Any person resident outside India, (not being a NRI or an erstwhile OCB), can transfer by way of gift the shares/ fully and mandatorily convertible debentures to any person resident outside India (including NRIs but excluding OCBs).
Note: Transfer of shares from or by erstwhile OCBs would require prior approval of the Reserve Bank of India.
a NRI may transfer by way of gift, the shares/convertible debentures held by him to another NRI only,
Any person resident outside India may transfer share/ fully and mandatorily convertible debentures to a person resident in India by way of gift.
Q.8. Can a person resident in India transfer security by way of gift to a person resident outside India?
Ans. A person resident in India who proposes to transfer security by way of gift to a person resident outside India [other than an erstwhile OCBs] shall make an application to the Central Office of the Foreign Exchange Department, Reserve Bank of India furnishing the following information, namely:
Name and address of the transferor and the proposed transferee
Relationship between the transferor and the proposed transferee
Reasons for making the gift.
In case of Government dated securities, treasury bills and bonds, a certificate issued by a Chartered Accountant on the market value of such securities.
In case of units of domestic mutual funds and units of Money Market Mutual Funds, a certificate from the issuer on the Net Asset Value of such security.
In case of shares/ fully and mandatorily convertible debentures, a certificate from a Chartered Accountant on the value of such securities according to the guidelines issued by the Securities & Exchange Board of India or the valuation as per any internationally accepted pricing methodology on arm’s length basis with regard to listed companies and unlisted companies, respectively.
Certificate from the Indian company concerned certifying that the proposed transfer of shares/convertible debentures, by way of gift, from resident to the non-resident shall not breach the applicable sectoral cap/ FDI limit in the company and that the proposed number of shares/convertible debentures to be held by the non-resident transferee shall not exceed 5 per cent of the paid up capital of the company.
The transfer of security by way of gift may be permitted by the Reserve bank provided:
(i) The donee is eligible to hold such security under Schedules 1, 4 and 5 to Notification No. FEMA 20/2000-RB dated May 3, 2000, as amended from time to time.
(ii) The gift does not exceed 5 per cent of the paid up capital of the Indian company/ each series of debentures/ each mutual fund scheme
(iii) The applicable sectoral cap/ foreign direct investment limit in the Indian company is not breached
(iv) The donor and the donee are relatives as defined in section 6 of the Companies Act, 1956.
(v) The value of security to be transferred by the donor together with any security transferred to any person residing outside India as gift in the financial year does not exceed the rupee equivalent of USD 50000.
(vi) Such other conditions as considered necessary in public interest by the Reserve Bank.
Q.9. What if the transfer of shares from resident to non-resident does not fall under the above categories?
Ans.
Transfer of Shares by Resident which requires Government approval
The following instances of transfer of shares from residents to non-residents by way of sale or otherwise requires Government approval:
(i) Transfer of shares of companies engaged in sector falling under the Government Route.
(ii) Transfer of shares resulting in foreign investments in the Indian company, breaching the sectoral cap applicable.
Prior permission of the Reserve Bank in certain cases for acquisition / transfer of security
i) Transfer of shares or convertible debentures from residents to non-residents by way of sale requires prior approval of Reserve Bank in case where the non-resident acquirer proposes deferment of payment of the amount of consideration. Further, in case approval is granted for the transaction, the same should be reported in Form FC-TRS to the AD Category – I bank, within 60 days from the date of receipt of the full and final amount of consideration.
(ii) A person resident in India, who intends to transfer any security, by way of gift to a person resident outside India, has to obtain prior approval from the Reserve Bank.
Any other case not covered by General Permission.
Q 10. What are the reporting obligations in case of transfer of shares between resident and non-resident?
Ans. The transaction should be reported by submission of form FC-TRS to the AD Category – I bank, within 60 days from the date of receipt/remittance of the amount of consideration. The onus of submission of the form FC-TRS within the given timeframe would be on the resident in India, the transferor or transferee, as the case may be.
Q.11. What is the method of payment and remittance/credit of sale proceeds in case of transfer of shares between resident and non-resident?
Ans. The sale consideration in respect of the shares purchased by a person resident outside India shall be remitted to India through normal banking channels. In case the buyer is a Foreign Institutional Investor (FII), payment should be made by debit to its Special Non-Resident Rupee Account. In case the buyer is a NRI, the payment may be made by way of debit to his NRE/FCNR (B) accounts. However, if the shares are acquired on non-repatriation basis by NRI, the consideration shall be remitted to India through normal banking channel or paid out of funds held in NRE/FCNR (B)/NRO accounts.
The sale proceeds of shares (net of taxes) sold by a person resident outside India) may be remitted outside India. In case of FII the sale proceeds may be credited to its special Non-Resident Rupee Account. In case of NRI, if the shares sold were held on repatriation basis, the sale proceeds (net of taxes) may be credited to his NRE/FCNR(B) accounts and if the shares sold were held on non repatriation basis, the sale proceeds may be credited to his NRO account subject to payment of taxes. The sale proceeds of shares (net of taxes) sold by an erstwhile OCB may be remitted outside India directly if the shares were held on repatriation basis and if the shares sold were held on non-repatriation basis, the sale proceeds may be credited to its NRO (Current) Account subject to payment of taxes, except in the case of erstwhile OCBs whose accounts have been blocked by Reserve Bank.
Q. 12. Are the investments and profits earned in India repatriable?
Ans. All foreign investments are freely repatriable (net of applicable taxes) except in cases where:
i) the foreign investment is in a sector like Construction and Development Projects and Defence wherein the foreign investment is subject to a lock-in-period; and
ii) NRIs choose to invest specifically under non-repatriable schemes.
Further, dividends (net of applicable taxes) declared on foreign investments can be remitted freely through an Authorised Dealer bank.
Q.13. What are the guidelines on issue and valuation of shares in case of existing companies?
Ans.
A. The price of shares issued to persons resident outside India under the FDI Scheme shall not be less than :
(i) the price worked out in accordance with the SEBI guidelines, as applicable, where the shares of the company is listed on any recognised stock exchange in India;
(ii) the fair valuation of shares done as per SEBI guidelines for listed companies or as per any internationally accepted pricing methodology on arm’s length basis, for unlisted companies
B. The price of shares transferred from resident to a non-resident and vice versa should be determined as under:
i) Transfer of shares from a resident to a non-resident:
a) In case of listed shares, at a price which is not less than the price at which a preferential allotment of shares would be made under SEBI guidelines.
b) In case of unlisted shares at a price which is not less than the fair valuation as per any internationally accepted pricing methodology on arm’s length basis to be determined by a SEBI registered Category-I- Merchant Banker/Chartered Accountant.
ii) Transfer of shares from a non-resident to a resident - The price should not be more than the minimum price at which the transfer of shares would have been made from a resident to a non-resident.
In any case, the price per share arrived at as per the above method should be certified by a SEBI registered Category-I-Merchant Banker / Chartered Accountant.
Q.14. What are the regulations pertaining to issue of ADRs/ GDRs by Indian companies?
Ans. i. In terms of Schedule 10 to Notification No. FEMA.20/2000-RB dated May 3, 2000, a person will be eligible to issue or transfer eligible securities to a foreign depository, for the purpose of converting the securities so purchased into depository receipts in terms of Depository Receipts Scheme, 2014 and guidelines issued by the Government of India thereunder from time to time. Depository Receipts issued under the Issue of Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993 shall be deemed to have been issued under the corresponding provisions of DR Scheme, 2014 and have to comply with the provisions laid out in Schedule 10 of Notification ibid.
ii. A company can issue DRs, if it is eligible to issue eligible instruments to person resident outside India under Schedules 1, 2, 2A, 3, 5 and 8 of Notification No. FEMA 20/2000-RB dated May 3, 2000, as amended from time to time.
iii. The aggregate of eligible securities which may be issued or transferred to foreign depositories, along with eligible securities already held by persons resident outside India, shall not exceed the limit on foreign holding of such eligible securities under the relevant regulations framed under FEMA, 1999.
iv. The eligible securities shall not be issued or transferred to a foreign depository for the purpose of issuing depository receipts at a price less than the price applicable to a corresponding mode of issue or transfer of such securities to domestic investors under the relevant regulations framed under FEMA, 1999.
v. The domestic custodian shall report the issue of depository receipts as per DR Scheme 2014 to the Reserve Bank as per the reporting guidelines for DR Scheme 2014.
Q.15. Can Indian companies issue Foreign Currency Convertible Bonds (FCCBs)?
Ans. FCCBs can be issued by Indian companies in the overseas market in accordance with the Scheme for Issue of Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993.
The FCCB being a debt security, the issue needs to conform to the External Commercial Borrowing guidelines, issued by RBI vide Notification No. FEMA 3/2000-RB dated May 3, 2000, as amended from time to time.
Q.16. Can a foreign investor invest in Preference Shares? What are the regulations applicable in case of such investments?
Ans. Yes. Foreign investment through preference shares is treated as foreign direct investment. However, the preference shares should be fully and mandatorily convertible into equity shares within a specified time to be reckoned as part of share capital under FDI. Investment in other forms of preference shares requires to comply with the ECB norms.
Q.17. Can a company issue debentures as part of FDI?
Ans. Yes. Debentures which are fully and mandatorily convertible into equity within a specified time would be reckoned as part of share capital under the FDI Policy.
Q.18. Can shares be issued against Lumpsum Fee, Royalty, ECB , Import of capital goods/ machineries / equipments (excluding second-hand machine) and Pre-operative/pre-incorporation expenses (including payments of rent)?
Ans. An Indian company eligible to issue shares under the FDI policy and subject to pricing guidelines as specified by the Reserve Bank from time to time, may issue shares to a person resident outside India :
being a provider of technology / technical know-how, against Royalty / Lumpsum fees due for payment;
against External Commercial Borrowing (ECB) (other than import dues deemed as ECB or Trade Credit as per RBI Guidelines).
With prior approval from FIPB for against import of capital goods/ machineries / equipments and Pre-operative/pre-incorporation expenses subject to the compliance with the extant FEMA regulations and AP Dir Series 74 dated June 30, 2011.
Provided, that the foreign equity in the company, after such conversion, is within the sectoral cap.
Further, on a review in September 2014, it has been decided that an Indian investee company may issue equity shares against any other funds payable by them, remittance of which does not require prior permission of the Government of India or Reserve Bank of India under FEMA, 1999 or any rules/ regulations framed or directions issued thereunder, provided that:
The equity shares shall be issued in accordance with the extant FDI guidelines on sectoral caps, pricing guidelines etc. as amended by Reserve bank of India, from time to time;
Explanation: Issue of shares/convertible debentures that require Government approval in terms of paragraph 3 of Schedule 1 of FEMA 20 or import dues deemed as ECB or trade credit or payable against import of second hand machinery shall continue to be dealt in accordance with extant guidelines;
he issue of equity shares under this provision shall be subject to tax laws as applicable to the funds payable and the conversion to equity should be net of applicable taxes.
Q.19. What are the other modes of issues of shares for which general permission is available under RBI Notification No. FEMA 20 dated May 3, 2000?
Ans.
Issue of shares under ESOP by Indian companies to its employees or employees of its joint venture or wholly owned subsidiary abroad who are resident outside India directly or through a Trust up to 5% of the paid up capital of the company.
Issue and acquisition of shares by non-residents after merger or de-merger or amalgamation of Indian companies.
Issue shares or preference shares or convertible debentures on rights basis by an Indian company to a person resident outside India.
Q.20. Can a foreign investor invest in shares issued by an unlisted company in India?
Ans. Yes. As per the regulations/guidelines issued by the Reserve Bank of India/Government of India, investment can be made in shares issued by an unlisted Indian company subject to compliance with FEMA provisions such as pricing, reporting, etc.
Q.21. Can a foreigner set up a partnership/ proprietorship concern in India?
Ans. No. Only NRIs/PIOs are allowed to set up partnership/proprietorship concerns in India on non-repatriation basis.
Q.22. Can a foreign investor invest in Rights shares issued by an Indian company at a discount?
Ans. There are no restrictions under FEMA for investment in Rights shares issued at a discount by an Indian company, provided the rights shares so issued are being offered at the same price to residents and non-residents. The offer on right basis to the person’s resident outside India shall be:
(a) in the case of shares of a company listed on a recognized stock exchange in India, at a price as determined by the company; and
(b) in the case of shares of a company not listed on a recognized stock exchange in India, at a price which is not less than the price at which the offer on right basis is made to resident shareholders.
Q.23. Can an AD bank allow pledge of shares of an Indian company held by non-resident investor in favour of an Indian bank or an Overseas bank or NBFC?
Ans. Yes, the same has been allowed vide the instruction sand subject to compliance with the terms and conditions as mentioned in the AP (Dir. Series) Circular No 57 dated May 2, 2011 and A.P. (DIR Series) Circular No.141 dated June 6, 2014.
Q.24. What declaration/certificate needs to be obtained by the AD in respect of utilization of loan proceeds for the declared purpose, consequent to pledge of shares, to comply with para. 2 (i) (b) of the A. P. (DIR Series) Circular No. 57 dated May 2, 2011?
Ans. The AD may obtain a board resolution ‘ex ante’ passed by the Board of Directors of the investee company, that the loan proceeds received consequent to pledge of shares, will be utilised by the investee company for the declared purpose.
The AD may also obtain a certificate from the statutory auditor ‘ex post’ of the investee company, that the loan proceeds received consequent to pledge of shares, have been utilised by the investee company for the declared purpose.
Q.25. Is a non-resident permitted to acquire share on stock exchange under FDI scheme?
Ans: Prior to issuance of A.P (DIR Series) Circular No. 38, dated September 6, 2013, no person resident outside India except a portfolio investor was allowed to acquire shares on stock exchange.
Portfolio Investors registered with SEBI namely FII and QFI were eligible to acquire shares on stock exchange in accordance with the requirements. Further, NRIs were also permitted to acquire shares on stock exchange, on repatriation and non-repatriation basis, in accordance with portfolio investment scheme for them.
With effect from August 5, 2013 (date of publication of relevant notification), a non-resident, other than portfolio investor, is eligible to acquire shares on stock exchange through a registered broker subject to the condition that the non-resident investor has already acquired and continues to hold the control in accordance with SEBI (Substantial Acquisition of Shares and Takeover) Regulations i.e. he has complied with the minimum stake requirement under SEBI Regulations.
Q.26. What will be the pricing norms for a non-resident permitted to acquire share on stock exchange under FDI scheme?
Ans: He shall acquire shares at the ruling market price.
Q.27. Whether the non-resident, permitted to acquire shares on stock exchange under FDI scheme, can sell those shares?
Ans: Non-Residents were already permitted to sell the shares on the recognised stock exchange in accordance with Regulation 9(2)(iii(b) of Notification FEMA No. 20 dated May 3, 2000.
Yes, the non-resident shall be at liberty to sell those shares as applicable under FDI guidelines. The shares acquired under the present scheme shall be treated as acquisition under FDI scheme and as such all requirement namely, sectoral cap, entry route, pricing, reporting, documentation etc. would have to be complied with.
Thus, non-resident having acquired shares under the scheme can subsequently transfer shares under FDI scheme.
Q28. What will be mode of payment for the non-resident permitted to acquire share on stock exchange under FDI scheme?
Ans: The Non-Resident permitted to acquire shares under the scheme can use following mode for payment of shares:
by way of inward remittance through normal banking channels, or
by way of debit to the NRE/FCNR account of the person concerned maintained with an authorised dealer/bank;
by debit to non-interest bearing Escrow account (in Indian Rupees) maintained in India with the AD bank in accordance with Foreign Exchange Management (Deposit) Regulations, 2000;
the consideration amount may also be paid out of the dividend payable by Indian investee company, in which the said non-resident holds control, provided the right to receive dividend is established and the dividend amount has been credited to specially designated non-interest bearing rupee account for acquisition of shares on the floor of stock exchange.
Q.29. Can an escrow account be opened without RBI permission for the non-resident permitted to acquire share on stock exchange under FDI scheme?
Ans: Yes, an escrow account for the purpose can be opened under General Permission under Regulation 5(5) of Foreign Exchange Management (Deposit) Regulations. [c.f. FEMA Notification No. 280 dated July 10, 2013]
Q.30. What is the meaning of Indian company?
Ans: An Indian Company means a company registered under the Companies Act, 1956/2013.
Q.31. What is the concept of downstream investment?
Ans: In common understanding, downstream investment would mean investment by a company in another company by way of subscription or acquisition of shares or acquisition of control. The investment in another Indian company (downstream) by an Indian company already having foreign investment is called downstream investment subject to conditions of ownership and control. Thus, there will be two Indian Companies, a first level company which has accepted foreign investment and in turn has made investment in a second level company i.e. another Indian company. [c.f. A.P. (DIR Series) Circular Numbers 1, 42 and 44 respectively dated July 4, 2013, September 13, 2013 and September 13, 2013].
Q.32. What will be the composition of ‘direct foreign investment’?
Ans: The concept ‘direct foreign investment’ means foreign investment in any Indian company made directly in form of Foreign Direct Investment (FDI), Portfolio investment from Foreign Institutional Investment (FII), Non-Resident Indian, Qualified Foreign Investor (QFI), Registered Foreign Portfolio Investor and Foreign Venture Capital Investor i.e. under Schedule 1, 2, 2A, 3, 6 and 8 of the Notification No. FEMA.20/2000-RB dated May 3, 2000, as amended from time to time. Thus, the investment in the above manner will be aggregated in first level Indian Company. Such first level Indian Company obviously cannot have indirect foreign investment.
Q.33. What about foreign investment in second level Indian Company?
Ans: The second level Indian Company can have ‘direct foreign investment’ as explained above and also have investment from another Indian company which is not ‘resident owned and controlled’ i.e. indirect foreign investment.
Further, the methodology for calculation of total foreign investment i.e. direct as well as indirect foreign investment would apply at every stage of investment in Indian companies and thus in each and every Indian company.
Q.34. What is the meaning of ‘resident owned’ Indian Company?
Ans: An Indian company be treated as ‘Owned by resident Indian citizens’ if more than 50% of the capital in it is beneficially owned by resident Indian citizens and/or Indian companies, which are ultimately owned and controlled by resident Indian citizens. Thus, computation of such percentage would require ascertaining shareholding by ‘resident Indian citizens’ and if the shareholding of such company is held by another Indian companies each of such Indian companies are ultimately owned and controlled by resident Indian citizens. It is clarified that such Indian owners are not only resident within meaning of Section 2(v) of FEMA, 1999 but are also citizens of India. The shareholding of a foreign citizen who has become resident within meaning of Section 2(v) ibid will not be aggregated for the benchmark of 50% and above.
Further, for Information & Broadcasting and defence sector if a declaration is made by persons as per section 187C of the Indian Companies Act about a beneficial interest being held by a non-resident entity, then even though the investment may be made by a resident Indian citizen, the same shall be counted as foreign investment.
Q.35. What is meaning of ‘control’?
Ans: '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 shareholding or management rights or shareholders agreements or voting agreements. For ascertaining control by resident Indian citizens the above norms shall be applied.
Q.36. What will be the composition of ‘indirect foreign investment’?
Ans: ‘Indirect foreign investment’ means entire investment in other Indian companies by an Indian company (IC), having foreign investment in it provided IC is not ‘owned and controlled’ by resident Indian citizens and/or Indian Companies which are owned and controlled by resident Indian citizens or where the IC is owned or controlled by non-residents. However, as an exception, the indirect foreign investment in the 100% owned subsidiaries of operating-cum-investing/investing companies will be limited to the foreign investment in the operating-cum-investing/ investing company. Thus, if an Indian company A has 60% FDI/ Portfolio investment/FCCB/FVCI/ Depository Receipts (issued under Schedule 10 of Notification No. FEMA.20/2000-RB dated May 3, 2000 with equity shares or compulsorily and mandatorily convertible preference shares or compulsory and mandatorily convertible debentures or warrant or any other security in which foreign direct investment can be made in terms of Schedule1 of the Notification ibid, as underlying) in it, invests in 100% of the shareholding of another Indian company B, it will be taken as B has indirect foreign investment of 60%. But, foreign owned Indian company A, having foreign investment of more than 50% but less than 100%, invests in 20% of the shareholding of another Indian company B, it will be taken as B has indirect foreign investment of 20%.
Q.37. Are there any exception on application of downstream investment?
Ans: The downstream rule may not be applied in following cases:
Where the first level Indian company is owned and controlled by resident Indian citizens;
where for investment in sectors it is specified in a statute or a rule there under. The above methodology of determining direct and indirect foreign investment therefore does not apply to the insurance sector which will continue to be governed by the relevant Regulation;
Downstream investment/s made by a banking company, as defined in clause (c) of Section 5 of the Banking Regulation Act, 1949, incorporated in India, which is owned and/or controlled by non-residents/ a non-resident entity/non-resident entities, under Corporate Debt Restructuring (CDR), or other loan restructuring mechanism, or in trading books, or for acquisition of shares due to defaults in loans, shall not count towards indirect foreign investment.
Q.38. What are implications of applicability of downstream rule:
Ans: While the norms of foreign investment for first level Indian company were already in place, the downstream investment in second level Indian companies would now have to be in accordance/ compliance with the relevant sectoral conditions on entry route, conditionalities and caps.
Such a company has to notify Secretariat for Industrial Assistance, DIPP and FIPB of its downstream investment in the form available at http://www.fipbindia.com within 30 days of such investment, even if capital instruments have not been allotted along with the modality of investment in new/existing ventures (with/without expansion programme).
The downstream investment by way of induction of foreign equity in an existing Indian Company to be duly supported by a resolution of its Board of Directors as also a Shareholders’ Agreement, if any;
The issue/transfer/pricing/valuation of shares shall continue to be in accordance with extant SEBI/RBI guidelines;
For the purpose of downstream investment, the Indian companies making the downstream investments would have to bring in requisite funds from abroad and not use funds borrowed in the domestic market. This would, however, not preclude downstream operating companies, from raising debt in the domestic market. Downstream investments through internal accruals are permissible.
Q.39. As portfolio investment may undergo change quite frequently, it will be difficult to monitor downstream investment?
Ans: To facilitate such computation, for the purpose portfolio investments either by FIIs, NRIs or QFIs holding as on March 31 of the previous year would be taken into account. e.g. for monitoring foreign investment for the financial year 2011-12, portfolio investment as on March 31, 2011 would be taken into account.
Q.40. What is the procedure to ensure compliance with the downstream investment guidelines?
Ans: The FDI recipient Indian company at the first level which is responsible for ensuring compliance with the FDI conditionalities like no indirect foreign investment in prohibited sector, entry route, sectoral cap/conditionalities, etc. for the downstream investment made by in the subsidiary companies at second level and so on and so forth would obtain a certificate to this effect from its statutory auditor on an annual basis as regards status of compliance with the instructions on downstream investment and compliance with FEMA provisions. The fact that statutory auditor has certified that the company is in compliance with the regulations as regards downstream investment and other FEMA prescriptions will be duly mentioned in the Director’s report in the Annual Report of the Indian company. In case statutory auditor has given a qualified report, the same shall be immediately brought to the notice of the Reserve Bank of India, Foreign Exchange Department (FED), Regional Office (RO) of the Reserve Bank in whose jurisdiction the Registered Office of the company is located.
Q.41. What will be the role of Regional Office of RBI?
Ans: Where the statutory auditor has given qualified report about the downstream investment, RO shall take action to ensure compliance in consultation with the Central Office.
Q.42. Since the instructions were issued by RBI in 2013 for the period commencing from February 13, 2009, how to ensure compliance retrospectively?
Ans: As regards investments made between February 13, 2009 and the date of publication of the FEMA notification i.e. June 21, 2013, Indian companies shall be required to intimate, within 90 days from the date of this circular, through an AD Category I bank to the concerned Regional Office of the Reserve Bank, in whose jurisdiction the Registered Office of the company is located, detailed position where the issue/transfer of shares or downstream investment is not in conformity with the regulatory framework now being prescribed. Reserve Bank shall consider treating such cases as compliant with these guidelines within a period of six months or such extended time as considered appropriate by RBI in consultation with Government of India.
ROs shall forward such consolidated statement to the Central Office with their comments for ensuring compliance with the instructions.
Q.43. Is first level Indian investee company making downstream investment required to file FC-GPR?
Ans: No, it is not required. FC-GPR is not to be filed by the first level Indian Investee Company at the time of making downstream investment in second level Indian Investee Company. However, compliance has to be ensured as explained under Q 41.
Q.44. What are the extant pricing guidelines for FDI instruments?
Ans: In terms of extant FEMA regulations, foreign investment in an Indian investee company should be subject to pricing guidelines as stipulated by RBI/SEBI from time to time. Earlier, the pricing guidelines for FDI instruments with optionality clauses was decided in terms of A.P.(DIR Series) Circular No. 86 dated January 9, 2014.
The extant pricing guidelines for FDI investment has since been reviewed vide A. P. (DIR Series) Circular No. 4 dated July 15, 2014 as under:
(i) In case of listed companies the issue and transfer of shares including compulsorily convertible preference shares and compulsorily convertible debentures shall be as per the SEBI guidelines and for FDI instruments with optionality clauses shall continue to be in accordance with A.P. (DIR Series) Circular No. 86 dated January 9, 2014, i.e., the non-resident investor shall be eligible to exit at the market price prevailing on the recognised stock exchanges subject to lock-in period as stipulated, without any assured return.
(ii) In case of unlisted companies, the issue and transfer of shares including compulsorily convertible preference shares and compulsorily convertible debentures with or without optionality clauses shall be at a price worked out as per any internationally accepted pricing methodology on arm’s length basis.
Q.45. The instructions prescribe that in case of a listed company, the non-resident investor shall be eligible to exit at the market price obtaining on recognised stock exchanges. Does it mean that all exit from investment in case of a listed company having FDI with optionality are to happen on the floor of stock exchange?
Ans: The optionality clause creates an obligation for the investee to buy the shares from the investor at the price prevailing on the stock market at the relevant time.
II. Foreign Technology Collaboration Agreement
Q.46. Whether the payment in terms of foreign technology collaboration agreement' can be made by an Authorised Dealer (AD) bank?
Ans. Yes, RBI has delegated the powers, to make payments for royalty, lumpsum fee for transfer of technology and payment for use of trademark/brand name in terms of the foreign technology collaboration agreement entered by the Indian company with its foreign partners, to the AD banks subject to compliance with the provisions of Foreign Exchange Management (Current Account Transactions) Rules, 2000. Further, the requirement of registration of the agreement with the Regional Office of Reserve Bank of India has also been done away with.
III. Foreign Portfolio Investment
Q.1. What are the regulations regarding Portfolio Investments by registered Foreign Portfolio Investors (RFPIs)?
Ans. Investment by RFPI registered in accordance with SEBI guidelines including deemed RFPI [erstwhile FII, QFI) is permitted. RFPI may include Asset Management Companies, Pension Funds, Mutual Funds, and Investment Trusts as Nominee Companies, Incorporated / Institutional Portfolio Managers or their Power of Attorney holders, University Funds, Endowment Foundations, Charitable Trusts and Charitable Societies.
Investment by RFPIs cannot exceed 10 per cent of the paid up capital of the Indian company. All RFPI/FII/QFI taken together cannot acquire more than 24 per cent of the paid up capital of an Indian Company.
RFPI can invest in primary issues of Non-Convertible Debentures (NCDs)/ bonds only if listing of such bonds / NCDs is committed to be done within 15 days of such investment. In case the NCDs/bonds issued to the SEBI RFPI are not listed within 15 days of issuance, for any reason, then the RFPI shall immediately dispose of these bonds/NCDs either by way of sale to a third party or to the issuer and the terms of offer to RFPI should contain a clause that the issuer of such debt securities shall immediately redeem / buyback the said securities from the RFPI in such an eventuality.
Q.2. Is an Indian Investee Company eligible to raise the aggregate cap of 24% for RFPI?
Ans. An Indian company can raise the 24 per cent ceiling to the sectoral cap / statutory ceiling, as applicable, by passing a resolution by its Board of Directors followed by passing a Special Resolution to that effect by their General Body. Indian company raising the aggregate RFPI investment limit of 24 per cent to the sectoral cap/ statutory limit, as applicable to the respective Indian company, should necessarily intimate the same to the Reserve Bank of India, immediately, as hitherto, along with a Certificate from the Company Secretary stating that all the relevant provisions of the extant Foreign Exchange Management Act, 1999 regulations and the Foreign Direct Policy, as amended from time to time, have been complied with.
The Indian Company thus raising the aggregate cap for RFPI investment should inform Reserve Bank of India, Foreign Exchange Department, Central Office, Shahid Bhagat Singh Marg, Fort, and Mumbai 400001. The intimation should necessarily be accompanied by (a) a resolution passed by Board of Directors of the Company enhancing the FII aggregate cap, (b) A special Resolution to the effect passed by the shareholders of the Company (c) a certificate from the Company Secretary stating that all the relevant provisions of the extant Foreign Exchange Management Act, 1999 regulations and the Foreign Direct Policy, as amended from time to time, have been complied with, (d) a certificate from the Company Secretary stating that all the resident shareholders of the investee company are ‘owned and controlled’ by residents.
To avoid inconvenience to the RFPI investors/Indian company, such intimation should be well in advance else RBI shall caution list the company on FII investment in the company reaching 22% of paid up capital or paid up capital of each series of convertible debentures issued by the company.
Q.3. What are the regulations regarding Portfolio Investments by NRIs/PIOs?
Ans. Non- Resident Indian (NRIs) and Persons of Indian Origin (PIOs) can purchase or sell shares/ fully and mandatorily convertible debentures of Indian companies on the Stock Exchanges under the Portfolio Investment Scheme. For this purpose, the NRI/ PIO has to apply to a designated branch of a bank, which deals in Portfolio Investment. All sale/ purchase transactions are to be routed through the designated branch.
An NRI or a PIO can purchase shares up to 5 per cent of the paid up capital of an Indian company. All NRIs/PIOs taken together cannot purchase more than 10 per cent of the paid up value of the company.
The sale proceeds of the repatriable investments can be credited to the NRE/ NRO, etc. accounts of the NRI/ PIO, whereas the sale proceeds of non-repatriable investment can be credited only to NRO accounts.
The sale of shares will be subject to payment of applicable taxes.
Q.4. Is Indian Investee Company eligible to raise the aggregate cap of 10% for Portfolio Investments by SEBI registered NRI/PIO?
Ans. This limit for investment by NRI/PIO under Portfolio investment scheme can be increased by the Indian company from 10 per cent to 24 per cent by passing a General Body resolution. Indian company raising the aggregate NRI investment limit of 10 per cent to 24 per cent, should necessarily intimate the same immediately to Reserve Bank of India, Foreign Exchange Department, Central Office, Shahid Bhagat Singh Marg, Fort, Mumbai 400001. The intimation should necessarily be accompanied by (a) a resolution passed by Board of Directors of the Company enhancing the FII aggregate cap, (b) A special Resolution to the effect passed by the shareholders of the Company (c) a certificate from the Company Secretary stating that all the relevant provisions of the extant Foreign Exchange Management Act, 1999 regulations and the Foreign Direct Policy, as amended from time to time, have been complied with, (d) a certificate from the Company Secretary stating that all the resident shareholders of the investee company are ‘owned and controlled’ by residents
To avoid inconvenience to the company such intimation should be well in advance else RBI shall caution list the company on FII investment in the company reaching 8% of paid up capital or paid up capital of each series of convertible debentures issued by the company.
Q.5. With Reference to instructions issued for NRI – PIS Scheme in Para. 2 (i) and (ii) of the A. P. (DIR Series) Circular No. 29 dated August 20, 2013 - whether RBI will allot separate / new Unique Code No. to the Link Office of the AD bank or will the Current Code No. allocated will continue to be the Unique Code No.?
Ans. If the AD bank’s Link Office already has a Code No. allotted by RBI, it will continue to be the Unique Code Number for reporting the transactions of NRI-PIS to RBI and the bank need not apply for new code.
Q.6. Can an AD bank debit investment advisory fees, chartered accountant’s fees for issue of 15CA/CB certificates to NRE/NRO – PIS account, as the permissible debit under the head - “Any charges on account of sale/purchase of shares or convertible debentures under PIS”?
Ans. The charges towards investment advisory fees, chartered accountant fees for issue of 15CA / CB certificates, etc. related to the transactions of sale/purchase of shares / debentures under PIS, may be debited to the NRE / NRO PIS accounts.
Q.7. Under FERA 1973, in terms of para. 2 of the A.D.(M.A. Series) Cir. No. 32 dated November 1, 1999, powers were delegated to the ADs, to grant permissions to the NRIs/OCBs who made portfolio investments through a designated branch of an AD, on repatriation or non-repatriation basis. The investment could be made in shares, debentures, Govt. securities (other than bearer securities), treasury bills, units of MFs, etc. Hence, the prescribed format for permission letter for investment on repatriation basis viz. ‘RBI-RPC- on repatriation basis’ [available at page nos. 37 to 40 of the A.P. (DIR Series) Circular No. 29, dated August 20, 2013 on RBI website] includes a reference to all such investments besides equity shares and convertible debentures. Whether the same format is applicable under FEMA also?
Ans. Under FEMA, the PIS includes investment only in equity shares and convertible debentures of Indian companies, on repatriation or non-repatriation basis. Hence, while issuing the approval letter to their NRI clients for undertaking investments under PIS, the relevant paragraphs in the format of permission letter viz. ‘RBI-RPC- on repatriation basis’, will be required to be suitably modified by the ADs. In this connection, attention of the AD is also invited to para. 2(iii) of the A.P. (DIR Series) Circular No. 29, dated August 20, 2013.
Q.8. Whether the transfer of funds from NRE - PIS and NRO – PIS accounts to NRE /NRO accounts of the NRI (opened under provisions of Notification No. FEMA. 5/2000-RB dated May 3, 2000 amended from time to time), is allowed on account of sale/maturity proceeds of equity shares and convertible debentures purchased and sold under Portfolio Investment Scheme (PIS) through NRE-PIS and NRO – PIS accounts?
Ans. It is clarified that NRE-PIS and NRO-PIS are essentially NRE and NRO accounts respectively and so designated to keep the portfolio investment related operations of the account holder segregated for facilitating identification and compliance. As such, there is no prohibition on transfer of any balances held in a NRE-PIS account to a NRE account or in a NRO-PIS account to a NRO account, subject of course to payment of taxes, if and as applicable.
Q. 9. Whether transfer of funds is allowed from NRE – PIS account of the NRI to his NRO account opened under the provisions of Notification No. FEMA. 5/2000-RB dated May 3, 2000, amended from time to time?
Ans. It is clarified that the transfer of funds on account of net sale / maturity proceeds of shares / debentures (net of all applicable taxes), may be allowed by the AD Bank from NRE – PIS account of a NRI to the said NRI’s NRO account.
Q.10. Whether transfer of funds is allowed from NRO – PIS account of the NRI to his NRE account opened under the provisions of Notification No. FEMA.5/2000-RB dated May 3, 2000, amended from time to time?
Ans. It is clarified that the transfer of funds on account of net sale / maturity proceeds (net of all applicable taxes), of shares / debentures may be allowed by the AD Bank from NRO – PIS account of a NRI to the said NRI’s NRE account, subject to the following conditions :-
such transfer of funds should be within the overall ceiling of USD one million per financial year;
subject to payment of tax, as applicable (i.e. as applicable if funds were remitted abroad); and
The AD should ensure the compliance with the limit of USD one million for transfer of funds by the NRI.
IV. Investment in other securities
Q.1. Can a Non-resident Indian (NRI) and SEBI registered Foreign Institutional Investor (FII)invest in Government Securities/ Treasury bills and Corporate debt?
Ans. Under the FEMA Regulations, only NRIs and SEBI registered FIIs are permitted to purchase Government Securities/Treasury bills and Corporate debt. The details are as under:
A. A Non-resident Indian can purchase without limit,
(1) on repatriation basis
i) Dated Government securities (other than bearer securities) or treasury bills or units of domestic mutual funds;
ii) Bonds issued by a public sector undertaking (PSU) in India; and
iii) Shares in Public Sector Enterprises being disinvested by the Government of India.
(2) on non-repatriation basis
i) Dated Government securities (other than bearer securities) or treasury bills or units of domestic mutual funds;
ii) Units of Money Market Mutual Funds in India; and
iii) National Plan/Savings Certificates.
B. A SEBI registered FII may purchase, on repatriation basis, dated Government securities/ treasury bills, listed non-convertible debentures/ bonds issued by an Indian company and units of domestic mutual funds either directly from the issuer of such securities or in any manner as per the prevalent/approved market practice.
Purchase of debt instruments including Upper Tier II instruments issued by banks in India and denominated in Indian Rupees by FIIs are subject to limits notified by SEBI and the Reserve Bank from time to time. The present limit for investment in Corporate Debt Instruments like non-convertible debentures / bonds by RFPI/FII/QFI and long term investors is USD 51 billion. FPIs shall not be allowed to make any further investment in CPs.
The present limit for investment by SEBI registered Foreign Institutional Investors (FIIs), SEBI registered Qualified Foreign Investors (QFIs) and long term investors registered with SEBI and Registered Foreign Portfolio Investor (RFPI) in Government Securities is USD 30 billion.
Q.2. Can a NRI and SEBI registered FII invest in Tier I and Tier II instruments issued by banks in India?
Ans. RFPI and NRIs have been permitted to subscribe to the Perpetual Debt instruments (eligible for inclusion as Tier I capital) and Debt Capital instruments (eligible for inclusion as upper Tier II capital), issued by banks in India and denominated in Indian Rupees, subject to the following conditions:
Investment by all RFPI in Rupee denominated Perpetual Debt instruments (Tier I) should not exceed an aggregate ceiling of 49 per cent of each issue and investment by individual FII should not exceed the limit of 10 per cent of each issue.
Investments by all NRIs in Rupee denominated Perpetual Debt instruments (Tier I) should not exceed an aggregate ceiling of 24 per cent of each issue and investments by a single NRI should not exceed 5 percent of each issue.
Investment by RFPIs in Rupee denominated Debt Capital instruments (Tier II) shall be within the limits stipulated by SEBI for RFPI/FII/QFI investment in corporate debt instruments.
Investment by NRIs in Rupee denominated Debt Capital instruments (Tier II) shall be in accordance with the extant policy for investment by NRIs in other debt instruments.
Investment by RFPIs in Rupee denominated Upper Tier II Instruments raised in Indian Rupees will be within the limit prescribed by the SEBI for investment in corporate debt instruments.
The details of the secondary market sales / purchases by RFPIs and the NRIs in these instruments on the floor of the stock exchange are to be reported by the custodians and designated Authorised Dealer banks respectively, to the Reserve Bank through the soft copy of the Forms LEC (FII) and LEC (NRI).
Q.3. Can a NRI and RFPI invest in Indian Depository Receipts (IDRs)?
Ans. NRI and RFPIs have been permitted to invest, purchase, hold and transfer IDRs of eligible companies resident outside India and issued in the Indian capital market, subject to the following conditions:
(i) The purchase, hold and transfer of IDRs is in accordance with the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 notified vide Notification No. FEMA 20 / 2000-RB dated May 3, 2000, as amended from time to time.
A limited two way fungibility for IDRs subject to the following terms and conditions:
The conversion of IDRs into underlying equity shares would be governed by the conditions mentioned in paras 6 and 7 of A.P. (DIR Series) Circular No. 5 dated July 22, 2009.
Fresh IDRs would continue to be issued in terms of the provisions of A.P. (DIR Series) Circular No. 5 dated July 22, 2009.
The re-issuance of IDRs would be allowed only to the extent of IDRs that have been redeemed /converted into underlying shares and sold.
There would be an overall cap of USD 5 billion for raising of capital by issuance of IDRs by eligible foreign companies in Indian markets. This cap would be akin to the caps imposed for FII investment in debt securities and would be monitored by SEBI.
IDRs shall not be redeemable into underlying equity shares before the expiry of one year period from the date of issue of the IDRs.
At the time of redemption / conversion of IDRs into the underlying shares, the Indian holders (persons resident in India) of IDRs shall comply with the provisions of the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004 notified vide Notification No. FEMA 120 / RB-2004 dated July 7 2004, as amended from time to time.
The FEMA provisions shall not apply to the holding of the underlying shares, on redemption of IDRs by the FIIs including SEBI approved sub-accounts of the FIIs and NRIs. The issuance, redemption and fungibility of IDRs would also be subject to the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009, as amended from time to time as well as other relevant guidelines issued in this regard by the Government, the SEBI and the RBI from time to time.
Q.4. Can a person resident in India invest in Indian Depository Receipts (IDRs)? What is the procedure for redemption of IDRs held by persons resident in India?
Ans. A person resident in India may purchase, hold and transfer IDRs of eligible companies resident outside India and issued in the Indian capital market. The FEMA Regulations shall not be applicable to persons resident in India as defined under section 2(v) of FEMA, 1999, for investing in IDRs and subsequent transfer arising out of a transaction on a recognized Stock Exchange in India. However, at the time of redemption / conversion of IDRs into underlying shares, the Indian holders (persons resident in India) of IDRs shall comply with the provisions of the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004 notified vide Notification No. FEMA 120 / RB-2004 dated July 7 2004, as amended from time to time. The following guidelines shall be followed on redemption of IDRs by persons resident in India:
i. Listed Indian companies may either sell or continue to hold the underlying shares subject to the terms and conditions as per Regulations 6B and 7 of Notification No. FEMA 120/RB-2004 dated July 7, 2004, as amended from time to time.
ii. Indian Mutual Funds, registered with SEBI may either sell or continue to hold the underlying shares subject to the terms and conditions as per Regulation 6C of Notification No. FEMA 120/RB-2004 dated July 7, 2004, as amended from time to time.
iii. Other persons resident in India including resident individuals are allowed to hold the underlying shares only for the purpose of sale within a period of 30 days from the date of conversion of the IDRs into underlying shares.
V. Foreign Venture Capital Investment
What are the regulations for Foreign Venture Capital Investment?
Ans.
A SEBI registered Foreign Venture Capital Investor has general permission from the Reserve Bank of India to invest in a Venture Capital Fund (VCF) or an Indian Venture Capital Undertaking (IVCU), in the manner and subject to the terms and conditions specified in Schedule 6 of RBI Notification No. FEMA 20/2000-RB dated May 3, 2000, as amended from time to time. These investments by SEBI registered FVCI, would be subject to the SEBI regulation and sector specific caps of FDI.
FVCIs can purchase equity / equity linked instruments / debt / debt instruments, debentures of an IVCU or of a VCF through initial public offer or private placement in units of schemes / funds set up by a VCF. At the time of granting approval, the Reserve Bank permits the FVCI to open a Foreign Currency Account and/ or a Rupee Account with a designated branch of an AD Category – I bank.
FVCIs allowed to invest in the eligible securities (equity, equity linked instruments, debt, debt instruments, debentures of an IVCU or VCF, units of schemes / funds set up by a VCF) by way of private arrangement / purchase from a third party also. FVCIs are also allowed to invest in securities on a recognized stock exchange.
The purchase / sale of shares, debentures and units can be at a price that is mutually acceptable to the buyer and the seller.
AD Category – I banks can offer forward cover to FVCIs to the extent of total inward remittance. In case the FVCI has made any remittance by liquidating some investments, original cost of the investments has to be deducted from the eligible cover to arrive at the actual cover that can be offered.
VI. Investment by QFIs
Q.1. What are QFIs and what are the investments they can undertake?
Ans: QFIs mean a person who fulfils the following criteria:
(a) Resident in a country that is a member of Financial Action task Force (FATF) or a member of a group which is a member of FATF; and
(b) Resident in a country that is a signatory to IOSCO’s MMoU (Appendix A Signatories) or a signatory of a bilateral MoU with SEBI
PROVIDED that the person is not resident in a country listed in the public statements issued by FATF from time to time on jurisdictions having a strategic AML/CFT deficiencies to which counter measures apply or that have not made sufficient progress in addressing the deficiencies or have not committed to an action plan developed with the FATF to address the deficiencies;
Further such person is not resident in India and is not registered with SEBI as a Foreign Institutional Investor (FII) or Sub-Account of an FII or Foreign Venture Capital Investor (FVCI).
Explanation:
“bilateral MoU with SEBI” shall mean a bilateral MoU between SEBI and the overseas regulator that, inter alia, provides for information sharing arrangements.
Member of FATF shall not mean an associate member of FATF.
Q.2. What are the investments QFIs can undertake and what are the applicable caps for such investment?
Ans: QFIs are now being treated as deemed RFPI and rules as applicable to RFPIs shall be applicable.
Q.3. What are the reporting requirements for acquisition/transfer of shares by non-residents under respective schedules to FEMA 20:
Ans: Following are the reporting requirements
(A) Reporting of FDI for fresh issuance of shares
(i) Reporting of inflow
(a) The actual inflows on account of such issuance of shares shall be reported by the AD branch in the R-returns in the normal course.
(b) An Indian company receiving investment from outside India for issuing shares / convertible debentures / preference shares under the FDI Scheme, should report the details of the amount of consideration to the Regional Office concerned of the Reserve Bank through it’s AD Category I bank, not later than 30 days from the date of receipt in the Advance Reporting Form enclosed in Annex - 6. Noncompliance with the above provision would be reckoned as a contravention under FEMA, 1999 and could attract penal provisions.
The Form can also be downloaded from the Reserve Bank's website
http://www.rbi.org.in/Scripts/BS_ViewFemaForms.aspx
(c) Indian companies are required to report the details of the receipt of the amount of consideration for issue of shares / convertible debentures, through an AD Category - I bank, together with a copy/ies of the FIRC/s evidencing the receipt of the remittance along with the KYC report on the non-resident investor from the overseas bank remitting the amount. The report would be acknowledged by the Regional Office concerned, which will allot a Unique Identification Number (UIN) for the amount reported.
(ii) Time frame within which shares have to be issued
The equity instruments should be issued within 180 days from the date of receipt of the inward remittance or by debit to the NRE/FCNR (B) /Escrow account of the non-resident investor. In case, the equity instruments are not issued within 180 days from the date of receipt of the inward remittance or date of debit to the NRE/FCNR (B) account, the amount of consideration so received should be refunded immediately to the non-resident investor by outward remittance through normal banking channels or by credit to the NRE/FCNR (B)/Escrow account, as the case may be. Non-compliance with the above provision would be reckoned as a contravention under FEMA and could attract penal provisions. In exceptional cases, refund / allotment of shares for the amount of consideration outstanding beyond a period of 180 days from the date of receipt may be considered by the Reserve Bank, on the merits of the case.
(iii) Reporting of issue of shares
(a) After issue of shares (including bonus and shares issued on rights basis and shares issued on conversion of stock option under ESOP scheme)/ convertible debentures / convertible preference shares, the Indian company has to file Form FC-GPR, through its AD Category I bank, not later than 30 days from the date of issue of shares. The Form can also be downloaded from the Reserve Bank's website http://www.rbi.org.in/Scripts/BS_ViewFemaForms.aspx
Non-compliance with the above provision would be reckoned as a contravention under FEMA and could attract penal provisions.
(b) Form FC-GPR has to be duly filled up and signed by Managing Director/Director/Secretary of the Company and submitted to the Authorised Dealer of the company, who will forward it to the concerned Regional Office of the Reserve Bank. The following documents have to be submitted along with Form FC-GPR:
(i) A certificate from the Company Secretary of the company certifying that :
a) all the requirements of the Companies Act, 1956 have been complied with;
b) terms and conditions of the Government’s approval, if any, have been complied with;
c) the company is eligible to issue shares under these Regulations; and
d) the company has all original certificates issued by AD banks in India evidencing receipt of amount of consideration.
(ii) A certificate from SEBI registered Merchant Banker or Chartered Accountant indicating the manner of arriving at the price of the shares issued to the persons resident outside India.
(c) The report of receipt of consideration as well as Form FC-GPR have to be submitted by the AD bank to the Regional Office concerned of the Reserve Bank under whose jurisdiction the registered office of the company is situated.
d) Issue of bonus/rights shares or shares on conversion of stock options issued under ESOP to persons resident outside India directly or on amalgamation / merger with an existing Indian company, as well as issue of shares on conversion of ECB / royalty / lumpsum technical know-how fee / import of capital goods by units in SEZs has to be reported in Form FC-GPR.
B. Reporting of FDI for Transfer of shares route
(i) The actual inflows and outflows on account of such transfer of shares shall be reported by the AD branch in the R-returns in the normal course.
(ii) Reporting of transfer of shares between residents and non-residents and vice- versa is to be made in Form FC-TRS. The Form FC-TRS should be submitted to the AD Category – I bank, within 60 days from the date of receipt of the amount of consideration. The onus of submission of the Form FC-TRS within the given timeframe would be on the transferor / transferee, resident in India.
(iii) The sale consideration in respect of equity instruments purchased by a person resident outside India, remitted into India through normal banking channels, shall be subjected to a KYC check (Annex 9-ii) by the remittance receiving AD Category – I bank at the time of receipt of funds. In case, the remittance receiving AD Category – I bank is different from the AD Category - I bank handling the transfer transaction, the KYC check should be carried out by the remittance receiving bank and the KYC report be submitted by the customer to the AD Category – I bank carrying out the transaction along with the Form FC-TRS.
(iv) The AD bank should scrutinise the transactions and on being satisfied about the transactions should certify the form FC-TRS as being in order.
(v) The AD bank branch should submit two copies of the Form FC-TRS received from their constituents/customers together with the statement of inflows/outflows on account of remittances received/made in connection with transfer of shares, by way of sale, to IBD/FED/or the nodal office designated for the purpose by the bank in the proforma (which is to be prepared in MS-Excel format). The IBD/FED or the nodal office of the bank will consolidate reporting in respect of all the transactions reported by their branches into two statements inflow and outflow statement. These statements (inflow and outflow) should be forwarded on a monthly basis to Foreign Exchange Department, Reserve Bank, Foreign Investment Division, Central Office, Mumbai in soft copy (in MS- Excel) by e-mail. The bank should maintain the FC-TRS forms with it and should not forward the same to the Reserve Bank of India.
(vi) The transferee/his duly appointed agent should approach the investee company to record the transfer in their books along with the certificate in the Form FC-TRS from the AD branch that the remittances have been received by the transferor/payment has been made by the transferee. On receipt of the certificate from the AD, the company may record the transfer in its books.
(vii) On receipt of statements from the AD bank , the Reserve Bank may call for such additional details or give such directions as required from the transferor/transferee or their agents, if need be.
C. Reporting of conversion of ECB into equity
Details of issue of shares against conversion of ECB have to be reported to the Regional Office concerned of the Reserve Bank, as indicated below:
In case of full conversion of ECB into equity, the company shall report the conversion in Form FC-GPR to the Regional Office concerned of the Reserve Bank as well as in Form ECB-2 to the Department of Statistics and Information Management (DSIM), Reserve Bank of India, Bandra-Kurla Complex, Mumbai – 400 051, within seven working days from the close of month to which it relates. The words "ECB wholly converted to equity" shall be clearly indicated on top of the Form ECB-2. Once reported, filing of Form ECB-2 in the subsequent months is not necessary.
In case of partial conversion of ECB, the company shall report the converted portion in Form FC-GPR to the Regional Office concerned as well as in Form ECB-2 clearly differentiating the converted portion from the non-converted portion. The words "ECB partially converted to equity" shall be indicated on top of the Form ECB-2. In the subsequent months, the outstanding balance of ECB shall be reported in Form ECB-2 to DSIM.
The SEZ unit issuing equity as mentioned in para (iii) above, should report the particulars of the shares issued in the Form FC-GPR.
D. Reporting of ESOPs for allotment of equity shares
The issuing company is required to report the details of issuance of ESOPs to its employees to the Regional Office concerned of the Reserve Bank, in plain paper reporting, within 30 days from the date of issue of ESOPs. Further, at the time of conversion of options into shares the Indian company has to ensure reporting to the Regional Office concerned of the Reserve Bank in form FC-GPR, within 30 days of allotment of such shares. However, provision with regard to advance reporting would not be applicable for such issuances.
E. Reporting of issue/transfer of DRs
The domestic custodian has to furnish, full details of such issue/transfer of depository receipts as per DR Scheme 2014 in ‘Form DRR’ within 30 days of close of the issue/ program.
F. Reporting of RFPI investments under PIS scheme
(i) RFPI reporting: The AD Category – I banks have to ensure that the RFPI who are purchasing various securities (except derivative and IDRs) by debit to the Special Non-Resident Rupee Account should report all such transactions details (except derivative and IDRs) in the Form LEC to Foreign Exchange Department, Reserve Bank of India, Central Office by uploading the same to the ORFS web site (https://secweb.rbi.org.in/ORFSMainWeb/Login.jsp). It would be the banks responsibility to ensure that the data submitted to RBI is reconciled by periodically taking a FII holding report for their bank.
(iii) The Indian company which has issued shares to FIIs under the FDI Scheme (for which the payment has been received directly into company’s account) and the Portfolio Investment Scheme (for which the payment has been received from FIIs' account maintained with an AD Category – I bank in India) should report these figures separately under item no. 5 of Form FC-GPR (Annex - 8) (Post-issue pattern of shareholding) so that the details could be suitably reconciled for statistical / monitoring purposes.
G. Reporting of NRI investments under PIS scheme
The link office of the designated branch of an AD Category – I bank shall furnish to the Reserve Bank18, a report on a daily basis on PIS transactions undertaken by it, on behalf of NRIs. This report can be furnished on a floppy to the Reserve Bank and also uploaded directly on the ORFS web site (https://secweb.rbi.org.in/ORFSMainWeb/Login.jsp). It would be the banks responsibility to ensure that the data submitted to RBI is reconciled by periodically taking a NRI holding report for their bank.
H. Reporting of foreign investment by way of issue / transfer of ‘participating interest/right’ in oil fields:
Foreign investment by way of issue / transfer of ‘participating interest/right’ in oil fields by Indian companies to a non resident would be treated as an FDI transaction under the extant FDI policy and the FEMA regulations. Accordingly, transfer of ‘participating interest/ rights’ will be reported as ‘other’ category under Para 7 of revised Form FC-TRS and issuance of ‘participating interest/ rights’ will be reported as ‘other’ category of instruments under Para 4 of Form FCGPR.
