Escolar Documentos
Profissional Documentos
Cultura Documentos
Investments
07 November 2015
Impact Seminar on
Inbound Investment
Policies, Opportunities & Challenges
By NIRC of ICSI
Vijay Gupta
ACMA, FCA, FCS
Agenda
Inbound Investment Schemes (only snap shot)
FDI/ECB Policy references
FIPB
Reporting of FDI Inflow
Reporting of Issue of Shares
Transfer of shares
Downstream Investments
Annual Return of Liabilities & Assets
Schedule 4 of FEMA 20
FPIs & NRIs under Portfolio Investments Scheme
Limited Liability Partnership
Remittances
External Commercial Borrowings
Compounding
FEM (Transfer or Issue of Security by a Person Resident
Outside India) Regulations, 2000: FEMA 20
Sch. 1 Foreign Direct Investment (FDI) Scheme
Sch. 2 Purchase/Sale of shares or convertible debentures or warrants of
& 2A an Indian Company by Registered Foreign Portfolio Investor (RFPI)
under Foreign Portfolio Investment (FPIs) Scheme (Registered
FIIs under Sch. 2 subsumed with Sch. 2A)
Sch. 3 Purchase/Sale of Shares and/or Convertible Debentures by an NRI
on a stock exchange in India on repatriation and/or non-
repatriation basis under Portfolio Investment Scheme
Sch. 4 Purchase and Sale of Shares or Convertible Debentures or
Warrants] by NRI, on Non-repatriation basis
Sch. 5 Purchase and Sale of Securities other than Shares or Convertible
Debentures of an Indian company by a person resident outside
India
Sch. 6 Investment in an Indian venture capital undertaking by a
registered Foreign Venture Capital Investor
Sch. 7 Indian depository receipts by eligible companies resident outside
India
Sch. 8 Scheme for investment by Qualified Foreign Investors in equity
shares (Subsumed under Sch. 2A)
Sch.9 Scheme for Acquisition/Transfer by a person resident outside
India of capital contribution or profit share of (LLPs)
Sch. 10 Depository Receipts Scheme, 2014 (DRs)
Composite Caps: Foreign investments, direct or indirect, under Schedule 1(FDI), 2
(FII), 2A (FPI), 3 (NRI), 6 (FVCI), 8 (QFI), 9 (LLPs) and 10 (DRs)
vide PN 8 dated 30 July 2015 by DIPP
Foreign Investment in India- Schematic
Representation
Foreign Inbound Investments
Other Investments on
Foreign Foreign Venture
Foreign Direct Investments Non-
Portfolio Capital
Investments (G-Sec, NCDs, Repatriable
Investments Investments etc.) basis
Company LLP
Sch. 1, 10 Sch. 9
FIPB Review books 2014, 2011-2013; 2010; 2009; 2008; FAQs by FIPB for eFiling
Annual Return on Foreign Liabilities and Assets (FLA return) 18 June 2014 for LLP also
FDI inflows - FIPB/SIA; Acquisition of Existing Shares; & Automatic Route of RBI: Website
of DIPP.nic.in
ECB/FCCB data under Automatic/Approval Routes: Monthly Press Release by RBI
In case of any conflict between FDI Circular and FEMA Regulations, the relevant FEMA
Notification will prevail. The procedural instructions are issued by the Reserve Bank of
India vide A.P.Dir. (Series) circulars
Read Circulars, latest Master Circulars, FAQs as Regulations may not be amended
simultaneously by Notification.
Foreign Direct Investment into an Indian company
Kinds of Investment
Automatic Route no prior approval from the RBI/ Government
Approval Route prior approval of the FIPB required (no separate RBI
approval)
Mode of Investment
Greenfield: Setting up a new JV/ WOS (fresh issue of shares)
Brownfield: Relating to existing investments/ business activities:
Brownfield
Investment
(iii) Transfer of shares from NRI to NR requires the prior approval of the
Reserve Bank of India.
(iv) Transfer is at a price which falls outside the pricing guidelines specified by the
Reserve Bank
e-FIPB___Revised filing procedure
Once the e-filing of the application is completed, the application needs to file/courier only
SINGLE copy of the printed version of the online application, along with the duly
authenticated copy of the documents attached with the application.
Global Reach -Apply from anywhere in the world! Access your status from anywhere in the
world! Transact while on a move!
Quicker processing- FIPS forwards the application online to the concerned ministries for
processing, queries are raised online eliminating physical delivery and loss of time due to
postal delays.
Less Paperwork - Single signed copy only needed (for record) instead of present multiple
sets of the application.
SMS/email alert- Regular alerts are sent to the applicants related to the queries raised by
the administrative ministries, inclusion of the proposal in the scheduled FIPS meeting and
decisions.
Time saving- E-correspondence between applicant and ministries and also between
ministries themselves avoids delays adding to speed and efficiency.
Transparency and security: all transactions and correspondences are recorded online and
are secure.
Query module- Any doubts? A user can raise a query online which shall be replied by the
relevant ministry.
Important issues in reporting / compliance
requirements
KYC and documentation if funds received from entity/person other
than foreign investor KYC from both the entities, and letter of
confirmations from both the entities
KYC in case of nominee if funds received / not received from
nominee
Obtaining FIRC from AD banks and description therein
Time taken by AD-Bank to peruse the documents
Date of fair valuation certificate (sometime on format, contents, etc.)
Reconciling of shareholding pattern as per RBI records: past issues
/ transfer of shares/ NR to NR transfer
Appropriateness of main object clause in the Memorandum of
Association
Determining correct NIC Codes 2008
Registered office address
Changes in AD Bank post receipt of funds but before issue of shares
Interpretation Sectoral aspects with AD-Banks
Conversion of ECB whether interest due covered (Legitimate due)?
Reporting of FDI Inflow
Action by
Form Supporting Time period Regional Office Non-compliance
concerned
Advance Reporting FIRC/s/ Debit Not later Allotment of Contravention
Form thru AD certificate than 30 Unique under FEMA
Bank for evidencing days from Identification
shares/FCCD/FCP receipt of the date of Number (UIN) for Attract penal
S/Warrants remittance receipt the amount provisions
KYC report on reported
non-resident
investor
Remittance received from entity other than foreign investors - KYC and documentation:
Investor name matches with FIRC/ KYC: If different NoC from Remitter and Investor, Nature of
relationship between Remitter and Investor, Letter form Investor, Board resolution of Investee
Company
No KYC if debit to NRE/ FCNR(B)
AD Bank letter/ debit certificate for NRE/ FCNR(B) transfer: Name, account type, amount, date
of debit
Amount in INR/FC matches with FIRC/Bank certificate
Copy of approval letter if under Approval Route
In FIRC: Name of beneficiary; remitter bank; remitter; date of credit; INR equivalent; Purpose of
remittance mentioned in FIRC
For each upfront/ call payment
FDI NIC Codes Reporting under FDI Scheme
Dear Sir/Madam,
This is with reference to your email/letter dated ____________ regarding receipt of the inward
remittance in foreign currency for an amount of ___________________ .
We request you to credit the same to our account as per the details given below.
Name & address of remitter/ Amount (in Purpose of Account Entry Route
investor foreign remittance Number (Automatic or under
currency Govt. approval)*
*In case the entry route is Government approval route, copy of FIPB approval is being
enclosed herewith.
We confirm that we have complied with all the applicable rules and regulations issued
under Foreign Exchange Management Act, 1999 (FEMA) by RBI from time to time on
Foreign Direct Investment (FDI) in India.
We confirm that we are eligible to receive the funds towards issue of equity shares or
mandatorily & fully convertible debentures or mandatorily & fully convertible preference
shares under FDI scheme under Automatic Route or Government Route.
We further confirm, declare and undertake that:
S/ Facet : Response [Please
N indicate Yes, No, or
Not Applicable (NA)]
I. The overseas remitter/investor Mr. / M/s _____ ______________ (name :
& address) is an eligible remitter/investor under FDI scheme and is
not a citizen and/or is an entity registered in Pakistan & Bangladesh.
II. As the overseas remitter/investor is either a citizen or an entity :
registered in Bangladesh or Pakistan, a copy of approval of Foreign
Investment Promotion Board (FIPB) of Government of India is enclosed
herewith.
III. As overseas remitter/investor is an erstwhile OCBs incorporated :
outside India, approval of the Government of India (if the investment is
through the Government Route) or approval of the Reserve Bank (if
the investment is through the Automatic Route) is enclosed. Erstwhile
OCB should submit a certification from RBI that it is not in the
adverse list being maintained with the RBI.
IV. We are not engaged in any prohibited activities/sectors listed as per :
current FDI Policy of Government of India.
V. That the equity instruments shall be issued within 180 days from :
the date of receipt of the inward remittance or by debit to the
NRE/FCNR (B) 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 would be refunded
immediately to the non-resident investor by outward remittance
through normal banking channels or by credit to the NRE/FCNR(B)
account (as the case may be).
We know that non-compliance with the above provision would be
reckoned as a contravention under FEMA and could attract penal
provisions.
S/ Facet : Response [Please
N indicate Yes, No, or
Not Applicable (NA)]
VI. 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, we
shall file Form FC-GPR through you to the RBI not later than 30
days from the date of issue of shares.
VII. Foreign Direct investment in Partnership Firm/Proprietary :
Concern (applicable only if the investee entity is a Partnership
Firm/ Proprietary Concern):
We declare that the inward remittance is by way of contribution to
the capital of our partnership firm/our proprietary concern on non-
repatriation basis and our partnership firm/ proprietary concern is
not engaged in any agricultural /plantation or real estate
business (i.e dealing in land and immovable property with a view
to earning profit or earning income there from) or print media sector.
The existing regulations issued by SEBI/RBI & FEMA regulations on
Foreign Direct Investment in India have been complied with.
We request you to kindly issue FIRC for the above FDI remittance, and authorize you to debit
banks charges for issuance of FIRC.
We enclose herewith duly signed Advance Reporting Form (ARF) and request you to report the
above FDI remittance to the RBI along with KYC form of the remitter and a copy of FIRC.
Yours faithfully,
For ____________
Authorized Signatory
Name -
Designation -
Company Name
Customer letter to include below stated declarations and
documents for FDI through the following mode:
Foreign investment towards issue of ADRs / GDRs
We declare that the inward remittance is towards issue of ADRs/ GDRs and we are
eligible to issue ADRs / GDRs in accordance with the Scheme for issue of Foreign Currency
Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism Scheme
,1993 and subsequent guidelines issued by Ministry of Finance , Government of India. The
existing regulations issued by SEBI, FEMA and RBI Guidelines on the investment have been
complied with.
Foreign investment towards issue of shares under ESOPs (Employee Stock Option
Scheme)
We declare that the inward remittance is towards issue of shares under ESOPs (Employee
Stock Option Scheme) .The existing regulations issued by SEBI FEMA and RBI Guidelines
on the investment have been complied with.
For ____________
Authorized Signatory
Reporting of Issue of Shares
Reporting of Issue of Fresh Shares /Partly paid shares/Bonus /Rights Shares
/ESOP/ Convertible Debentures / Convertible Preference Shares /Conversion of
ECB / Royalty / Lumpsum Technical Know-how Fee / Import of Capital Goods
by SEZs /Pre-operative/Pre-incorporation Expenses/Legitimate dues/
Amalgamation/ Merger
Action by
Time
Form Supporting Regional Office Non-compliance
period
concerned
Issue of equity shares against any other funds (Legitimate Dues) payable by the
investee company, 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:
i. 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;
ii. The 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.
FEMA
1. It is under Automatic Route no prior or post approvals required from RBI/FIPB.
2. ECB, due for payment or not, eligible to be converted into equity if ECB was taken in
compliance with ECB regulations.
3. Equity shares can be issued to the ECB Lender entity.
4. To obtain consent from ECB lender for such conversion; supported by Indian Companys Board
Resolution.
5. A Chartered Accountant's Certificate complying with RBI Pricing/Valuation guidelines. The
actual issue price of shares shall not be less than the price determined on the basis of valuation
report.
6. A Chartered Accountant's Certificate certifying the amount outstanding on the date of
conversion.
7. Reporting under Form FC-GPR. No intimation for Inward Remittance Report required to be
furnished to RBI; as not applicable being conversion of ECB.
8. For full conversion: Reporting of the conversion of ECB into equity, in ECB-2 Return. The
words ECB wholly converted to equity should be clearly indicated on top of the ECB-2 form.
Once reported, filing of ECB-2 in the subsequent months is not necessary.
9. 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.
Conversion of ECB into Equity
Companies Act 2013:
4. After EGM, to hold Board meeting for allotment of shares by means of resolutions passed
at meetings of the Board; and not by resolution by circulation section 179(3)(c).
5. To file with RoC Form MGT.14 u/s 179(3(c) read with section 117(3)(g).
6. To maintain a complete record of such offers and acceptances in Form No. PAS-5.
7. File with RoC a Return of Allotment in Form PAS-3 with list of allottees stating their
names, address, occupation, if any, and number of securities allotted to each of the
allottees and the list shall be certified by the signatory of the Form PAS-3 as being
complete and correct as per the records of the company; along with the valuation report
by independent chartered accountant in practice having a minimum experience of ten
years.
Pledge of shares of company incorporated in India
Any person being a promoter of a company registered in India (borrowing
company), which has raised external commercial borrowing, may pledge the
shares of the borrowing company or that of its associate resident
companies for the purpose of securing the external commercial borrowing
(ECB) raised by the borrowing company
Shares of an Indian company held by the non-resident investor can be
pledged in favour of an Indian bank in India to secure the credit facilities
being extended to the resident investee company for bona fide business
purposes
(iii) Board resolution duly certified by Company Secretary: Since the date of
incorporation, the Company ______ Limited has not carried out any activity
which is not FDI compliant. Further the Company is doing and in future also
will do only such activity which is allowed under FDI Policy issued by DIPP,
Ministry of Commerce and Industry, Govt. of India.
CERTIFICATE TO BE FILED BY THE COMPANY SECRETARY OF THE INDIAN
COMPANY ACCEPTING THE INVESTMENT:
(As per Para 9 (1) (B) (i) of Schedule 1 to Notification No. FEMA 20/2000-RB
dated May 3, 2000)
In respect of the abovementioned details, we certify the following :
1. All the requirements of the Companies Act, 1956 have been complied with.
2. Terms and conditions of the Government approval, if any, have been complied with.
3. The company is eligible to issue shares / convertible debentures/others under
these Regulations.
4. The company has all original certificates issued by AD Category I banks in India,
evidencing receipt of amount of consideration in accordance with paragraph 8 of
Schedule 1 to Notification No. FEMA 20/2000-RB dated May 3, 2000.
Note: If the company doesnt have full time Company Secretary, a certificate
from practicing Company Secretary may be submitted.
(Name & Signature of the Company Secretary) (Seal)
ESOPs plain paper reporting for stock options- at the time of issue shares FCGPR
within 30 days- not more than 5% of capital and scheme as per SEBI guidelines
Merger/ Amalgamation Court order - FCGPR (not to exceed sectoral cap activity
permitted as per FDI policy)
ECB conversion in to Equity CA certificate for outstanding ECB, copy of ECB-2
returns
FCGPR-For checking and reporting to RBI (For Issue of
Shares)
Documents required for initial reporting to RBI:
KYC of the overseas remitter (Certified Copy from Remitting Bank.) as per the prescribed
format mentioned in the circular.
Certified copy of FIRC.
CA VALUATION
CS certificate for application of funds.
Certified copy of Board Resolution for issuance of shares.
Acknowledgment from R.B.I. for report of inward remittance OR UIN LETTER ISSUED
BY RBI
If the remittance is under approval route, copy of the FIPB/DIPP approval.
Companies failing to Issue shares/ Convertible debentures within 180 days from the
date of receipt of consideration needs to return the consideration to the foreign investors
or seeks RBIs approval for extension of period for issue of shares/debentures.
MOA of the company required
Reporting under ESOPs for allotment of equity shares
The design of the reporting platform enables the customer to login into the e-Biz portal,
download the reporting forms (ARF and FCGPR), complete and then upload the same onto
the portal using their digitally signed certificates.
The Authorised Dealer Banks (ADs) will be required to download the completed forms,
verify the contents from the available documents, if necessary by calling for additional
information from the customer and then upload the same for RBI to process and allot the
Unique Identification Number (UIN). It has been decided that the ARF and FCGPR services of
RBI will be operational on the e-Biz platform from February 19, 2015. The user manual for the
two services is Annexed to this Circular.
It may be noted that for the present, the online reporting on the e-Biz platform is an additional
facility to the Indian companies to undertake their ARF and FCGPR reporting and the manual
system of reporting as prescribed in terms of A.P. (DIR Series) Circular No.102 dated
February 11, 2014 would continue till further notice.
iii. The pricing for subsequent transfer of shares shall be in accordance with the pricing
guidelines under FEMA;
iv. The original and resultant investments are in line with the extant FDI policy and FEMA
regulations in respect of sectoral cap, entry route, reporting requirement,
documentation, etc;
FC-TRS
Transfer of shares/ convertible debentures/ partly paid shares/ warrants
File form FC-TRS with RBI through authorised dealer within 60 days of receipt of
consideration (in quardruplicate)
In respect of the transfer from resident to non resident, the declaration has to be signed by the non
resident buyer, and in respect of the transfer from non-resident to resident the declaration has to be
signed by the non-resident seller.
For any delay in submission, AD Bank to approach RO, RBI
Indian company can record transfer only post approval of Form-FC TRS by AD-Bank
Onus on transferor / transferee, resident in India
Onus on reporting for purchase on recognized stock exchange will be on the
Investee company
Inward remittance subject to KYC norms (KYC check to be carried by remittance receiving
bank)
AD Bank shall certify FC-TRS as being in order
FC-TRS should not be forwarded to RBI. Instead, AD Bank branch will submit two copies
to IBD/FED/Nodal Office of the Bank in Specified Proforma. It in turn will consolidate all
transactions reported by their branched on monthly basis into two statements inflow and
outflow statement; which will be forwarded to CO, RBI in soft copy.
On receipt of certificate from AD Bank, Company may record transfer in its books. If
transfer already effected by Indian company?
On receipt of Statements, RBI may seek information from transferor/ transferee/ their
agents
FCTRS- For checking and reporting to RBI (For the
Sale of Shares)
Transfer of shares from Non -Resident to Resident.
FIRC copy
KYC of the Remitter
Disclose in Balance Sheet
If Contravened?
To bring the difference form the foreign investor to
comply with pricing guidelines and also to apply for
compounding for contravention of pricing guidelines?
Online filing of the Foreign Currency Transfer of Shares
(FCTRS)
A.P. (DIR Series) Circular No.9 Dated 21st August, 2015
The design of the reporting platform enables the customer to login into the eBiz portal,
download the reporting form (FCTRS), complete and then upload the same onto the portal
using their digitally signed certificates.
The Authorised Dealer Banks (ADs) will be required to download the completed forms, verify
the contents from the available documents and if necessary, call for additional information from
the customer and then upload the same for RBI to process and allot the Unique Identification
Number (UIN). The FCTRS services of RBI will be made operational on the e-Biz platform from
August 24, 2015. The user manual for this service is Annexed to this Circular.
It may be noted that for the present, the online reporting on the e-Biz platform is an additional
facility to the Indian residents to undertake their FCTRS reporting and the manual system of
reporting as prescribed in terms of A.P. (DIR Series) Circular No.6 dated July 18, 2014 would
continue till further notice.
AD Bank User:
Process the application; Forward to RBI RO; Raise objection if required; Update status;
Issue certificate
Department User:
Process the application; Raise objection if required; Provide approval; Update status
Downstream Investments
Investment by Foreign Owned and/ or
Controlled Indian company into another
Indian company
Covers fresh investment and acquisition of
Foreign Co existing shares
> 50%
Regarded as Indirect FDI
Pricing guidelines applicable to Direct FDI
Indian Co will equally apply
Investment/ consideration for transfer > Fair
1% to 100% Value
Downstream
Compliance: Filing of intimation with SIA, DIPP
Indian Co and FIPB within 30 days from date of
investment
Downstream buy-backs also covered by pricing
guidelines
Buy-back price < Current Fair Value
Valuation needs to be done by a Chartered
Accountant or SEBI Regd. Merchant Banker
Anomaly: Downstream investment through
acquisition of shares from NR
Indian company can record share transfer only
on receiving acknowledged Form FC-TRS
Indirect FDI/Control
Earlier: A company is considered as Controlled by resident Indian citizens if
the resident Indian citizens and Indian companies, which are owned and
controlled by resident Indian citizens, have the power to appoint a majority of
its directors in that company.
SEBI: Right of first refusal and tag along rights do not amount to change
in CONTROL as per Takeover Regulations
The filled in Excel based FLA return should be forwarded through the official
email id of any authorized person like CFO, Director, Company Secretary
etc. Acknowledgement
Annual Return on Foreign Liabilities & Assets (FLA
Return) (1/2)
Due date of filing FLA Return July 15 every year
Eligible Companies Indian companies which have
received FDI and/or made ODI in
the previous year(s) including the
current year i.e. who holds foreign
Assets or Liabilities in their Balance
Sheets as on 31 March
No outstanding investment in respect of Ned not submit FLA Return
inward and outward FDI as on end-March of
reporting year
If a company has received only share Need not submit FLA Return
application money and does not have any
FDI/ODI outstanding as on end-March of
the reporting year
If the company has not received any fresh Required to submit FLA Return
FDI and/or ODI in the latest year but the
company has outstanding FDI and/or ODI
Registered Partnership Firms (Registered Required to send a request mail to
under Partnership Registration Act) or get a dummy CIN number which
branches or trustees, having any outward will enable them to file the Excel
FDI outstanding as on end-March of the based FLA Return
reporting year
FLA Return (2/2)
Is it required to submit Annual Yes. FLA Return and APR are two
Performance Report (APR) for ODI, different Returns as per different FEMA
where FLA Return has been Notifications
submitted ?
Who is responsible to file FLA Filled-in Excel based FLA return should
Return? From whose mail ID, the be forwarded through the official email
FLA Return should be e-mailed? ID of any authorized person like CFO,
Director, Company Secretary etc.
Format of FLA Return Updated FLA return to be downloaded
from RBIs website every year by end
of May
Where accounts are not audited FLA Return to be submitted based on
before July 15 unaudited (provisional) account
Revisions from the provisional Revised FLA Return based on audited
information given by company after accounts can be filed by September
accounts get audited end
Non-filing of return before due date Violation under FEMA, Penalty or
prosecution may be initiated
Partnership Firm / Proprietary Firm
By NRI and PIO:
On non-repatriation basis:
(Not engaged in any agricultural/plantation
or real estate business /print media sector)
Subject to prior permission of RBI in
On repatriation basis consultation with the Government of India.
Generally not permitted by FIPB
Subject to prior approval of RBI in
Other than NRIs/PIO: consultation with the Government of India.
Generally not permitted by FIPB
Schedule 4 of FEMA 20
NRIs may without any limit, purchase on non-repatriation basis,
shares or convertible debentures of an Indian company issued whether
by public issue or private placement or right issue
Non-Resident Indian (NRI) means an individual resident outside India who is a citizen
of India or is an Overseas Citizen of India cardholder within the meaning of section 7 (A)
of the Citizenship Act, 1955. Persons of Indian Origin cardholders registered as such
under Notification No.26011/4/98 F.I, dated 19.8.2002, issued by the Central
Government are deemed to be Overseas Citizen of India cardholders.
Vide The Citizenship (Amendment) Act 2015 w.e.f. 06 January 2015 read PN7 dated 03 June 2015
FPIs & NRIs
FPIs
Individual holding Below10% of the capital
Aggregate limit for FIIs 24% of the capital
Aggregate limit of 24% can be Special Resolution of Shareholders
increased to the sectoral Prior intimation to RBI
cap/statutory ceiling Certificate from the Company Secretary
stating compliance of FEMA and FDI
Policy
Aggregate under FDI and Portfolio within the above caps
Investment Scheme
IPOs only Permitted
NRIs
NRIs through designated ADs up to 5 % of the paid- up capital
Aggregate limit of 10% can be Special Resolution of Shareholders
raised to 24 per cent Prior intimation to RBI
Certificate from the Company Secretary
stating compliance of FEMA and FDI
Policy
Shares purchased under Portfolio Except NRIs can transfer shares acquired
Investment Scheme cannot be under PIS to close relatives
transferred by way of sale under
private arrangement
Indian Investee Company eligible to raise the aggregate cap
of 24% for RFPI
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.
Indian Investee Company eligible to raise the aggregate cap
of 10% for Portfolio Investments by SEBI registered NRI/PIO
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
Limited Liability Partnerships (LLPs)
FDI in LLPs:
Prior approval from FIPB
Sectors/activities where 100% FDI allowed
No FDI-linked performance related conditions (such as Non Banking
Finance Companies or Development of Townships, Housing, Built-up
infrastructure and Construction-development projects, or Retail sector etc.)
Only by way of cash consideration
Indian company having FDI (direct or indirect irrespective of % of such
foreign investment), permitted to make downstream investment in LLP only
if both the company as well as the LLP is operating in sectors where 100%
FDI allowed, through automatic route
Designated Partner Resident in India under LLP Act and FEMA
Bank can allow remittance of sale proceeds of a security (net of applicable taxes) to the
seller of shares resident outside India, provided the security has been held on repatriation
basis, the sale of security has been made in accordance with the prescribed guidelines
and NOC / tax clearance certificate from the Income Tax Department has been produced.
Repatriation of Interest: Without any restrictions (net of applicable taxes) being Current
Account Transactions. Bench mark ceiling applicable for Preference Shares apply to
interest as well.
Credit of sale proceeds of Foreign Direct Investments in India to NRE / FCNR(B) accounts
permitted
Form 15CA/15CB .. 1/2
Automatic Route
Approval Route
Preference shares
REPORTING ARANGEMENTS
For allotment of Loan Registration Number (LRN), borrowers are required to submit Form 83, in
duplicate, certified by the Company Secretary (CS) or Chartered Accountant (CA) to the designated AD
bank. Copies of loan agreement and offer documents for FCCB are not required to be submitted with Form
83. One copy is to be forwarded by the designated AD bank to the Director, Balance of Payments Statistics
Division, Department of Statistics and Information Management (DSIM), Reserve Bank of India, Bandra-
Kurla Complex, Mumbai 400 051.
Borrower can draw-down loan only after obtaining LRN from DSIM, Reserve Bank.
Borrowers are required to submit ECB-2 Return certified by the designated AD bank on monthly basis so
as to reach DSIM, Reserve Bank within seven working days from the close of month to which it
relates.
Dissemination of Information
Information with regard to name of borrower, amount, purpose and maturity of ECB under both Automatic
and Approval routes are put on Reserve Banks website, on a monthly basis, with a lag of one month to
which it relates.
Data on ECB/FCCB for the month of September 2015
I AUTOMATIC ROUTE*
ECB/ Borrower Equivalent Purpose Maturity Period Maturity Period
FCCB Amount in USD (Appx) (Appx)
1 ECB Rose Plastic India Private 3,93,199 Working Capital 7 Years 10 Months 7 Years 10 Months
Limited
2 ECB Hindustan Petroleum 25,00,00,000 Modernisation 5 Years 3 Months 5 Years 3 Months
Corporation Limited #
3 ECB CPF (India) Private Limited 2,00,00,000 Import of Capital 5 Years 5 Years
Goods
4 ECB The Great Eastern 2,94,00,000 Refinancing of Earlier 8 Years 1 Month 8 Years 1 Month
Shipping Campany Limited ECB
5 ECB Intelligent Pure Water 11,50,778 Rupee Expenditure 3 Years 1 Month 3 Years 1 Month
Technologies Private Loc.CG
Limited #
6 ECB Saurer Textile Solutions 33,70,277 New Project 9 Years 7 Months 9 Years 7 Months
Private Limited
7 ECB Nippon Carbide India 6,04,065 General Corporate 7 Years 1 Month 7 Years 1 Month
Private Limited Purpose
8 ECB Zydus Technologies Limited 3,38,55,990 Refinancing of Rupee 4 Years 8 Months 4 Years 8 Months
loans
54 ECB Sarla Performance Fibers 40,00,000 Overseas Acquisition 5 Years 5 Years
Limited
Automatic Route Total 1,13,45,56,703
* Based on Form 83 submitted for allotment of Loan Registration Number
# Confirmation sought from the AD bank regarding compliance with ECB guidelines
II APPROVAL ROUTE*
1 ECB Global Vectra Helicorp 87,00,000 Import of Capital 10 Years 1 Month 10 Years 1 Month
Limited Goods
2 ECB Reliance Industries Limited 1,47,14,13,397 Refinancing of Earlier 3 Years 7 Months 3 Years 7 Months
ECB
Approval Route Total 1,48,01,13,397
Grand Total 2,61,46,70,100
DELEGATION OF POWERS TO AUTHORISED DEALERS (AD)
ECBs raised under the automatic or approval routes
(c) Change of the AD bank: Subject to No-Objection Certificate (NOC) from the existing
designated AD bank and after due diligence.
(d) Changes in the name of the Borrower Company: Subject to production of supporting
documents evidencing the change in the name from the Registrar of Companies.
(e) Transfer of ECB: From one company to another on account of re-organisation at the
borrowers level in the form of merger / demerger / amalgamation / acquisition duly as per
the applicable laws / rules after satisfying themselves that the company acquiring the ECB
is an eligible borrower.
(f) Change in the recognized lender: Subject to ensuring that the original lender as well as
the new lender is recognised lender as per extant ECB guidelines, there is no change in the
other terms and conditions of the ECB.
(g) Change in the name of Lender: After satisfying themselves with the bonafides of the
transactions and ensuring that the ECB continues to be in compliance with applicable
guidelines.
DELEGATION OF POWERS TO AUTHORISED DEALERS (AD)
(h) Cancellation of LRN: Directly approach DSIM for cancellation of LRN for ECBs availed,
subject to ensuring that no draw down for the said LRN has taken place and the monthly ECB-2
returns till date in respect of the LRN have been submitted to DSIM.
(i) Change in the end-use of ECB proceeds: Subject to ensuring that the proposed end-use is
permissible under the automatic route as per the extant ECB guidelines, there is no change in
the other terms and conditions of the ECB, and the monthly ECB-2 returns till date in respect of
the LRN have been submitted to DSIM.
Change in the end-use of ECBs availed under the approval route will continue to be referred to the
Foreign Exchange Department, Central Office, Reserve Bank of India, as hitherto.
(j) Reduction in amount of ECB: (Irrespective of the number of occasions) with or without any
changes in draw-down and repayment schedules, average maturity period and all-in-cost.
Note:
i. Subject to ensuring that the revised average maturity period and or all-in-cost is/are in
conformity with the applicable ceilings / guidelines and the changes are effected during
the tenure of the ECB and the ECB continues to be in compliance with applicable guidelines.
ii. The changes in the terms and conditions of ECB and / or any other changes allowed should be
reported to the Department of Statistics and Information Management (DSIM) of the Reserve
Bank through revised Form 83 at the earliest, in any case not later than 7 days from the
changes effected. While submitting revised Form 83 to the DSIM, the changes should be
specifically mentioned in the communication. Further, these changes should also get
reflected in the ECB 2 returns appropriately.
Form-83
(Reporting of loan agreement details under Foreign Exchange Management Act,
1999)
To be submitted in duplicate by the borrower to designated Authorised Dealer (AD) for all
categories and any amount of external commercial borrowing (ECB). After examining
conformity with the extant ECB guidelines, the AD may provide requisite details in Part F of
the Form and forward one copy (within 7 days from the date of signing loan agreement
between borrower and lender) for allotment of Loan Registration Number (LRN) to: The
Director, Balance of Payments Statistics Division, Department of Statistics and Information
Management (DSIM), Reserve Bank of India, C-8-9 Bandra-Kurla Complex, Mumbai 400
051
Borrower has given written undertaking to AD to the effect that it has been submitting
ECB-2 Returns regularly to RBI in respect of past ECB/FCCB loans)
We hereby certify that the particulars given above are true and correct to the best
of our knowledge and belief and no material information has been withheld
and/or misrepresented. Furthermore, the ECB is in compliance with the extant
ECB guidelines.
Place:___ ___________________________________________________
(Signature of the Authorised Official of the Company)
Date: ___________ Stamp Name: ______________________ Designation:______________
Place:_____________ _____________________________________
(Signature of Company Secretary/ Chartered Accountant)
Date:_______________ Stamp Name: _________________________________________
Registration No.:______________________________
For allotment of Loan Registration Number (LRN), borrowers are required to
submit Form 83, in duplicate, certified by the Company Secretary (CS) or
Chartered Accountant (CA) to the designated AD bank.
ECB-2
Reporting of actual transactions of External Commercial Borrowings (ECB) under
Foreign Exchange Management Act, 1999 (for all categories and any amount of
loan) Return for the month of ___________
Submitted within 7 working days from the close of the month through the designated
Authorised Dealer to the Director, Department of Statistics and Information Management
(DSIM), Balance of Payments Statistics Division, Reserve Bank of India, C- 8/9, Bandra-
Kurla Complex, Bandra (East), Mumbai-400 051.
If there is no transaction during a particular period, a Nil Return should be submitted.
The Company Secretary / Chartered Accountant must scrutinise related
original documents and ensure that the return is complete and in order as per
ECB guidelines issued by Government/RBI, before forwarding it to RBI.
Certificate from Company Secretary / Chartered Accountant
We hereby certify that the ECB availed in terms of approval granted by
Government or RBI or under approval route / automatic route is duly accounted
in the books of accounts. Further, ECB proceeds have been utilised by the
borrower for the purpose of ____________________________________. We have verified
all the related documents and records connected with the utilisation of ECB
proceeds and found these to be in order and in accordance with the terms and
conditions of the loan agreement and with the approval granted by GoI (MoF) or
RBI or under approval route / automatic route and is in conformity with the
applicable ECB Guidelines.
Authorised Signatory : ____________________________
Name & Address : __________________________________
Place : _____________ Registration No. : __________________________________
Date : _____________ [Stamp]
________________________________________________________________________________
Calculation of Average Maturity- An Illustration
Loan Amount = USD 2 million
Date of drawal/ Drawal Repayment Balance No. of Days** Product = (Col.4 *
repayment balance with Col. 5)/ (Loan
(MM/DD/YY) the borrower amount * 360)
79
External Commercial Borrowings (ECB)
Request Letter
Form 83
Loan Agreement (Duly signed by both the parties).
Memorandum Of Association of borrower
Copy of latest audited balance sheet of borrower.
Copy of RBI registration no. issued for FC-GPR reporting (applicable if lender has equity
investment in borrower company)
Board Resolution for availing External Commercial Borrowings.
Letter from the Indian Company
Activity of Indian Company
Breakup of End Use of ECB (Amount wise description)
Undertaking that loan amount will not be used for any of the End Uses not
permitted by RBI.
Declaration that No regulatory investigations either by state or central
authorities is pending against the company or any of its Promoters, Directors,
Authorized Signatories
Average maturity and All in cost calculation
Certificate from borrower
Form ECB ( For Approval Route)
On receipt of complied documents, the bank will approach Reserve Bank of India for Loan
Registration Number.
Outward Remittances
Request letter
Form A2
Invoice copy / Agreement copy
FEMA declaration
15 CA and CB
Routing of funds raised abroad to India
It has come to our notice that some Indian companies are accessing overseas market for
debt funds through overseas holding / associate / subsidiary / group companies. It
has also been reported that such borrowings are raised at rates exceeding the ceiling
applicable in terms of extant FEMA regulations and that the funds so raised are
routed to the Indian companies which accounts for sole/major operations of the
group. Different modalities/structures are resorted to for channeling such funds for
Indian operations including investment in rupee bonds floated by the Indian company.
(i) the underlying ECB is in compliance with the extant ECB guidelines,
(ii) there exists a security clause in the Loan Agreement requiring the ECB borrower to create charge,
in favour of overseas lender / security trustee, on immovable assets / movable assets / financial
securities / issuance of corporate and / or personal guarantee, and
(iii) No objection certificate, wherever necessary, from the existing lenders in India has been obtained.
3. Once aforesaid stipulations are met, the AD Category-I bank may permit creation of charge on
immovable assets, movable assets, financial securities and issue of corporate and / or personal
guarantees, during the currency of the ECB with security co-terminating with underlying ECB, subject to
the following:
The powers to compound the contraventions have been delegated to all Regional Offices (except
Kochi and Panaji) and FED, CO Cell, New Delhi respectively without any limit on the amount
of contravention. Kochi and Panaji Regional offices can compound the above contraventions for
amount of contravention below Rupees one hundred lakh (Rs.1,00,00,000/-). The contraventions of
Rupees one hundred lakh (Rs.1,00,00,000/-) or more under the jurisdiction of Panaji and Kochi
Regional Offices and all other contraventions of FEMA will continue to be compounded at Cell for
Effective Implementation of FEMA (CEFA), Mumbai, as hitherto.
Mobile: 9810083373
vijay.gupta@vkgnassociates.com