FOREIGN INVESTMENT IN INDIA
MASTER CIRCULAR NO.15/2015-16, DATED 1-7-2015
Foreign investment in India is governed by sub-section (3) of Section 6 of the Foreign Exchange Management Act, 1999 read with Notification No. FEMA 20/2000-RB dated May 3, 2000, as amended from time to time. The regulatory framework and instructions issued by the Reserve Bank have been compiled in this Master Circular. The list of underlying circulars/notifications is furnished in Appendix. In addition to the above, this Master Circular also covers the area of ‘Investment in capital of Limited Liability Partnership, partnership firms or proprietary concern’ which is regulated in terms of Section 2(h) of Section 47 of Foreign Exchange Management Act, 1999, read with Notification No. FEMA 24/2000-RB dated May 3, 2000.
2. This Master Circular is being updated from time to time as and when the fresh instructions are issued. The date up to which the Master Circular has been updated is suitably indicated.
3. This Master Circular may be referred to for general guidance. The Authorised Persons and the Authorised Dealer Category – I banks may refer to respective circulars/notifications for detailed information, if so needed.
Foreign Investments in India—Schematic Representation:
Section – I: Foreign Direct Investment
1. Foreign Direct Investment in India
Foreign Direct Investment (FDI) in India is :
–
undertaken in accordance with the FDI Policy which is formulated and announced by the Government of India. The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India issues a “Consolidated FDI Policy Circular ” on an yearly basis on March 31 of each year (since 2010) elaborating the policy and the process in respect of FDI in India. The latest “Consolidated FDI Policy Circular” dated April 17, 2014 is available in the public domain and can be downloaded from the website of Ministry of Commerce and Industry, Department of Industrial Policy and Promotion – http://dipp.nic.in/English/Policies/FDI_Circular_2014.pdf governed by the provisions of the Foreign Exchange Management Act (FEMA), 1999. FEMA Regulations which prescribe amongst other things the mode of investments i.e. issue or acquisition of shares/convertible debentures and preference shares, manner of receipt of funds, pricing guidelines and reporting of the investments to the Reserve Bank. The Reserve Bank has issued Notification No. FEMA 20/2000- RB dated May 3, 2000 which contains the Regulations in this regard. This Notification has been amended from time to time.
2. Entry routes for investments in India
Under the Foreign Direct Investments (FDI) Scheme, investments can be made in shares, mandatorily and fully convertible debentures and mandatorily and fully convertible preference shares1 of an Indian company by non-residents through two routes:
♦
Automatic Route: Under the Automatic Route, the foreign investor or the Indian company does not require any approval from the Reserve Bank or Government of India for the investment.
♦
Government Route: Under the Government Route, the foreign investor or the Indian company should obtain prior approval of the Government of India(Foreign Investment Promotion Board (FIPB), Department of Economic Affairs (DEA), Ministry of Finance or Department of Industrial Policy & Promotion, as the case may be) for the investment.
3. Eligibility for Investment in India
(i)
A person resident outside India2 or an entity incorporated outside India, can invest in India, according to the FDI Policy of the Government of India and Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations, 2000. It may be noted that a person who is a citizen of or an entity incorporated in Bangladesh/Pakistan can invest in India under the FDI Schemewith the prior approval of the FIPBsubject to terms and conditions mentioned in FDI Policy andForeign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations, 2000.
(ii)
NRIs, resident in Nepal and Bhutan as well as citizens of Nepal and Bhutan are permitted to invest in shares and convertible debentures of Indian companies under FDI Scheme on repatriation basis, subject to the condition that the amount of consideration for such investment shall be paid only by way of inward remittance in free foreign exchangethrough normal banking channels.
(iii)
Overseas Corporate Bodies (OCBs) have been de-recognised as a class of investor in India with effect from September 16, 2003. Erstwhile OCBs which are incorporated outside India and are not under adverse notice of the Reserve Bank can make fresh investments under the FDI Scheme as incorporated non-resident entities, with the prior approval of the Government of India if the investment is through the Government Route; and with the prior approval of the Reserve Bank, if the investment is through the Automatic Route. However, before making any fresh FDI under the FDI scheme, an erstwhile OCB should through their AD bank, take a one time certification from RBI that it is not in the adverse list being maintained with the Reserve Bank of India.
ADs should also ensure that OCBs do not maintain any account other than NRO current account in line with the instructions as per A.P. (DIR Series) Circular No. 14 dated September 16, 2003. Further, this NRO account should not be used for any fresh investments in India. Any fresh request for opening of NRO current account for liquidating previous investment held on non-repatriation basis should be forwarded by the AD bank to Foreign Exchange Department, Reserve Bank of India, Central Office, Mumbai. However, ADs should not close other category of accounts (NRE/FCNR/NRO) for OCBs which are in the adverse list of the Reserve Bank of India. These accounts are to be maintained by the respective AD banks in the frozen status.
4. Type of instruments
(i)
Indian companies can issue equity shares, fully and mandatorily convertible debentures, fully and mandatorily convertible preference shares and warrants subject to the pricing guidelines/valuation norms and reporting requirements amongst other requirements as prescribed under FEMA Regulations.
(ii)
Prior to December 30, 2013, issue of other types of preference shares such as non- convertible, optionally convertible or partially convertible, were to be in accordance with the guidelines applicable for External Commercial Borrowings (ECBs). On and from December 30, 2013 it has been decided that optionality clauses may henceforth be allowed in equity shares and compulsorily and mandatorily convertible preference shares/debentures to be issued to a person resident outside India under the Foreign Direct Investment (FDI) Scheme. The optionality clause will oblige the buy-back of securities from the investor at the price prevailing/value determined at the time of exercise of the optionality so as to enable the investor to exit without any assured return. The provision of optionality clause shall be subject to the following conditions:
(a)
There is a minimum lock-in period of one year or a minimum lock-in period as prescribed under FDI Regulations, whichever is higher (e.g. defence sector where the lock-in period of three years has been prescribed). The lock-in period shall be effective from the date of allotment of such shares or convertible debentures or as prescribed for defence sector, etc. in Annex B to Schedule 1 of Notification No. FEMA. 20 as amended from time to time;
(b)
After the lock-in period, as applicable above, the non-resident investor exercising option/right shall be eligible to exit without any assured return, as under:
(i)
In case of a listed company, the non-resident investor shall be eligible to exit at the market price prevailing at the recognised stock exchanges;
(ii)
In case of unlisted company, the non-resident investor shall be eligible to exit from the investment in equity shares of the investee company at a price as per any internationally accepted pricing methodology on arm’s length basis, duly certified by a Chartered Accountant or a SEBI registered Merchant Banker.
The guiding principle would be that the non-resident investor is not guaranteed any assured exit price at the time of making such investment/agreements and shall exit at the fair price computed as above at the time of exit, subject to lock-in period requirement, as applicable.
5. Pricing guidelines
l Fresh issue of shares: Price of fresh shares issued to persons resident outside India under the FDI Scheme, shall be :
♦
on the basis of SEBI guidelines in case of listed companies.
♦
not less than fair value of shares determined by a SEBI registered Merchant Banker or a Chartered Accountant as per as per any internationally accepted pricing methodology on arm’s length basis.
The pricing guidelines as above are subject to pricing guidelines as enumerated in paragraph above, for exit from FDI with optionality clauses by non-resident investor.
The above pricing guidelines are also applicable for issue of shares against payment of lump sum technical know how fee/royalty due for payment/repayment or conversion of ECB into equity or capitalization of pre incorporation expenses/import payables (with prior approval of Government).
The pricing of the partly paid equity shares shall be determined upfront and 25% of the total consideration amount ( including share premium, if any), shall also be received upfront; The balance consideration towards fully paid equity shares shall be received within a period of 12 months.
The time period for receipt of the balance consideration within 12 months shall not be insisted upon where the issue size exceeds rupees five hundred crore and the issuer complies with Regulation 17 of the SEBI (Issue of Capital and Disclosure Requirements(ICDR)) Regulations regarding monitoring agency. Similarly, in case of an unlisted Indian company, the balance consideration amount can be received after 12 months where the issue size exceeds rupees five hundred crores. However, the investee company shall appoint a monitoring agency on the same lines as required in case of a listed Indian company under the SEBI (ICDR) Regulations. Such monitoring agency (AD Category -1 bank) shall report to the investee company as prescribed by the SEBI regulations, ibid, for the listed companies.
The pricing of the warrants and price/conversion formula shall be determined upfront and 25% of the consideration amount shall also be received upfront. The balance consideration towards fully paid up equity shares shall be received within a period of 18 months;
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 warrants, in accordance with the extant FEMA Regulations and pricing guidelines stipulated by RBI from time to time. Thus, Investee company shall be free to receive consideration more than the pre-agreed price.
3It is clarified that where the liability sought to be converted by the company is denominated in foreign currency as in case of ECB, import of capital goods, etc. it will be in order to apply the exchange rate prevailing on the date of the agreement between the parties concerned for such conversion. Reserve Bank will have no objection if the borrower company wishes to issue equity shares for a rupee amount less than that arrived at as mentioned above by a mutual agreement with the ECB lender. It may be noted that the fair value of the equity shares to be issued shall be worked out with reference to the date of conversion only.
It is further clarified that the principle of calculation of INR equivalent for a liability denominated in foreign currency as mentioned at paragraph 3 above shall apply, mutatis mutandis, to all cases where any payables/liability by an Indian company such as, lump sum fees/royalties, etc. are permitted to be converted to equity shares or other securities to be issued to a non-resident subject to the conditions stipulated under the respective Regulations.
♦
However, where non-residents (including NRIs) are making investments in an Indian company in compliance with the provisions of the Companies Act, 2013, by way of subscription to its Memorandum of Association, such investments may be made at face value subject to their eligibility to invest under the FDI scheme.
♦
Additional conditions for issue of partly paid shares and warrants
(a)
The Indian company whose activity/sector falls under government route would require prior approval of the Foreign Investment Promotion Board (FIPB), Government of India for issue of partly-paid shares/warrants.
(b)
The forfeiture of the amount paid upfront on non-payment of call money shall be in accordance with the provisions of the Companies Act, 2013 and Income tax provisions, as applicable;
(c)
The company while issuing partly paid shares or warrants shall ensure that the sectoral caps are not breached even after the shares get fully paid-up or warrants get converted into fully paid equity shares. Similarly, the Non-resident investors acquiring partly paid shares or convertible debentures or warrants shall ensure that the sectoral caps are not breached even after the shares get fully paid-up or warrants get converted into fully paid equity shares.
(d)
The deferment of payment of consideration amount or shortfall in receipt of consideration amount as per applicable pricing guidelines by the foreign investors will not be covered under these guidelines so as to be treated as subscription to partly paid shares and warrants. Thus, the Investee company under these guidelines for issue/transfer of partly-paid shares/warrants, shall require to comply with the requirements under the Companies Act, 2013 for issuance of partly paid shares and warrants;
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Issue of shares by SEZs against import of capital goods: In this case, the share valuation has to be done by a Committee consisting of Development Commissioner and the appropriate Customs officials.
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Right Shares: The price of shares offered on rights basis by the Indian company to non-resident shareholders shall be:
(i)
In the case of shares of a company listed on a recognised stock exchange in India, at a price as determined by the company.
(ii)
In the case of shares of a company not listed on a recognised stock exchange in India, at a price which is not less than the price at which the offer on right basis is made to the resident shareholders.
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Acquisition/transfer of existing shares (private arrangement). The acquisition of existing shares from Resident to Non-resident (i.e. to incorporated non-resident entity other than erstwhile OCB, foreign national, NRI, FII) would be at a:-;
(a)
negotiated price for shares of companies listed on a recognized stock exchange in India which shall not be less than the price at which the preferential allotment of shares can be made under the SEBI guidelines, as applicable, provided the same is determined for such duration as specified therein, preceding the relevant date, which shall be the date of purchase or sale of shares. The price per share arrived at should be certified by a SEBI registered Merchant Banker or a Chartered Accountant.
(b)
negotiated price for shares of companies which are not listed on a recognized stock exchange in India which shall not be less than the fair value worked out as per any internationally accepted pricing methodology for valuation of shares on arm’s length basis, duly certified by a Chartered Accountant or a SEBI registered Merchant Banker. Further, transfer of existing shares by Non-resident (i.e. by incorporated non-resident entity, erstwhile OCB, foreign national, NRI, FII) to Resident shall not be more than the minimum price at which the transfer of shares can be made from a resident to a non-resident as given above.
♦
The pricing of shares/convertible debentures/preference shares should be decided/determined upfront at the time of issue of the instruments. The price for the convertible instruments can also be a determined based on the conversion formula which has to be determined/fixed upfront, however the price at the time of conversion should not be less than the fair value worked out, at the time of issuance of these instruments, in accordance with the extant FEMA regulations.
♦
The pricing guidelines as above are subject to pricing guidelines as enumerated in paragraph above, for exit from FDI with optionality clauses by non-resident investor.
6. Mode of Payment
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/import of capital goods by units in SEZ 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 of consideration shall be refunded. Further, the 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.
7. Foreign Investment limits, Prohibited Sectors and investment in MSEs
(a) Foreign Investment Limits
The details of the entry route applicable and the maximum permissible foreign investment/sectoral cap in an Indian Company are determined by the sector in which it is operating.
The details of the entry route applicable along with the sectoral cap for foreign investment in various sectors are given in Annex -1.
(b) Investments in Micro and Small Enterprise (MSE)
A company which is reckoned as Micro and Small Enterprise (MSE) (earlier Small Scale Industrial Unit) in terms of the Micro, Small and Medium Enterprises Development (MSMED) Act, 2006, including an Export Oriented Unit or a Unit in Free Trade Zone or in Export Processing Zone or in a Software Technology Park or in an Electronic Hardware Technology Park, and which is not engaged in any activity/sector mentioned in Annex 2 may issue shares or convertible debentures to a person resident outside India (other than a resident of Pakistan and to a resident of Bangladesh under approval route), subject to the prescribed limits as per FDI Policy, in accordance with the Entry Routes and the provision of Foreign Direct Investment Policy, as notified by the Ministry of Commerce & Industry, Government of India, from time to time.
Any Industrial undertaking, with or without FDI, which is not an MSE, having an industrial license under the provisions of the Industries (Development & Regulation) Act, 1951 for manufacturing items reserved for the MSE sector may issue shares to persons resident outside India (other than a resident/entity of Pakistan and to a resident/entity of Bangladesh with prior approval FIPB), to the extent of 24 per cent of its paid-up capital or sectoral cap whichever is lower. Issue of shares in excess of 24 per cent of paid-up capital shall require prior approval of the FIPB of the Government of India and shall be in compliance with the terms and conditions of such approval.
Further, in terms of the provisions of MSMED Act, (i) in the case of the enterprises engaged in the manufacture or production of goods pertaining to any industry specified in the first schedule to the Industries (Development and Regulation) Act, 1951, a micro enterprise means where the investment in plant and machinery does not exceed twenty five lakh rupees; a small enterprise means where the investment in plant and machinery is more than twenty five lakh rupees but does not exceed five crore rupees; (ii) in the case of the enterprises engaged in providing or rendering services, a micro enterprise means where the investment in equipment does not exceed ten lakh rupees; a small enterprise means where the investment in equipment is more than ten lakh rupees but does not exceed two crore rupees.
(c) Prohibition on foreign investment in India
(i) Foreign investment in any form is prohibited in a company or a partnership firm or a proprietary concern or any entity, whether incorporated or not (such as, Trusts) which is engaged or proposes to engage in the following activities4:
(a)
Business of chit fund, or
(b)
Nidhi company, or
(c)
Agricultural or plantation activities, or
(d)
Real estate business, or construction of farm houses, or
(e)
Trading in Transferable Development Rights (TDRs).
(ii) 5However, it is clarified that only NRIs are eligible to subscribe to the chit funds on non- repatriation basis subject to the following conditions:
a.
The Registrar of Chits or an officer authorised by the State Government in accordance with the provisions of the Chit Fund Act in consultation with the State Government concerned, may permit any chit fund to accept subscription from Non-Resident Indians on non-repatriation basis;
b.
The subscription to the chit funds shall be brought in through normal banking channel, including through an account maintained with a bank in India.
(iii) Further, It is clarified that “real estate business” means dealing in land and immovable property with a view to earning profit or earning income therefrom and does not include development of townships, construction of residential/commercial premises, roads or bridges, educational institutions, recreational facilities, city and regional level infrastructure, townships.
It is also further clarified that partnership firms/proprietorship concerns having investments as per FEMA regulations are not allowed to engage in print media sector.
(iv) In addition to the above, Foreign investment in the form of FDI is also prohibited in certain sectors such as (Annex-2):
(a)
Lottery Business including Government/private lottery, online lotteries, etc.6
(b)
Gambling and Betting including casinos etc.
(c)
Chit funds
(d)
Nidhi company
(e)
Trading in Transferable Development Rights (TDRs)
(f)
Real Estate Business or Construction of Farm Houses
(g)
Manufacturing of Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes
(h)
Activities/sectors not open to private sector investment e.g. (I) Atomic energy and (II) Railway operations (other than permitted activities mentioned in entry 18 of Annex B).
Note : Foreign technology collaboration in any form including licensing for franchise, trademark, brand name, management contract is also prohibited for Lottery Business and Gambling and Betting activities.
77A Group company’ means two or more enterprises which, directly or indirectly, are in position to:
(i)
exercise twenty-six per cent, or more of voting rights in other enterprise; or
(ii)
appoint more than fifty per cent, of members of board of directors in the other enterprise.
8. Modes of Investment under Foreign Direct Investment Scheme
Foreign Direct Investment in India can be made through the following modes:
8. A. Issuance of fresh shares by the company
An Indian company may issue fresh shares/convertible debentures under the FDI Scheme to a person resident outside India (who is eligible for investment in India) subject to compliance with the extant FDI policy and the FEMA Regulation.
8. B. Acquisition by way of transfer of existing shares by person resident in or outside India
Foreign investors can also invest in Indian companies by purchasing/acquiring existing shares from Indian shareholders or from other non-resident shareholders. General permission has been granted to non-residents/NRIs for acquisition of shares by way of transfer in the following manner:
8 B. I Transfer of shares by a Person resident outside India
a.
Non Resident to Non-Resident (Sale/Gift): A person resident outside India (other than NRI and OCB) may transfer by way of sale or gift, shares or 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.
b.
NRI to NRI (Sale/Gift): NRIs may transfer by way of sale or gift the shares or convertible debentures held by them to another NRI.
c.
Non Resident to Resident(Sale/Gift):
(i)
Gift: A person resident outside India can transfer any security to a person resident in India by way of gift.
(ii)
Sale under private arrangement: General permission is also available for transfer of shares/convertible debentures, by way of sale under private arrangement by a person resident outside India to a person resident in India in case where transfer of shares are under SEBI regulations and where the FEMA pricing guidelines are not met, subject to the following
(a)
The original and resultant investment comply with the extant FDI policy/FEMA regulations;
(b)
The pricing complies with the relevant SEBI regulations (such as IPO, Book building, block deals, delisting, exit, open offer/substantial acquisition/SEBI (SAST) and buy back); and
(c)
CA certificate to the effect that compliance with relevant SEBI regulations as indicated above is attached to the Form FC-TRS to be filed with the AD bank.
(d)
Compliance with reporting and other guidelines as given in Annex 3.
Note: Transfer of shares from a Non Resident to Resident other than under SEBI regulations and where the FEMA pricing guidelines are not met would require the prior approval of the Reserve Bank of India.
(iii)
Sale of shares/convertible debentures on the Stock Exchange by person resident outside India: A person resident outside India can sell the shares and convertible debentures of an Indian company on a recognized Stock Exchange in India through a stock broker registered with stock exchange or a merchant banker registered with SEBI.
AD Category -I bank may issue bank guarantee, without prior approval of the Reserve Bank, on behalf of a non-resident acquiring shares or convertible debentures of an Indian company through open offers/delisting/exit offers, provided 8:
(a)
the transaction is in compliance with the provisions of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) [SEBI(SAST)] Regulations;
(b)
the guarantee given by the AD Category -I bank is covered by a counter guarantee of a bank of international repute.
It may be noted that the guarantee shall be valid for a tenure co-terminus with the offer period as required under the SEBI (SAST) Regulations. In case of invocation of the guarantee, the AD Category-I bank is required to submit to the Principal Chief General Manager, Foreign Exchange Department, Reserve Bank of India, Central Office, Mumbai 400001, a report on the circumstances leading to the invocation of the guarantee.
8.B.II Transfer of shares/convertible debentures from Resident to Person Resident outside India
A person resident in India can transfer by way of sale, shares/convertible debentures (including transfer of subscriber’s shares), of an Indian company under private arrangement to a person resident outside India, subject to the following alongwith pricing, reporting and other guidelines given in Annex – 3.
(a)
where the transfer of shares requires the prior approval of the FIPB as per extant FDI policy provided that; i) the requisite FIPB approval has been obtained; and ii)the transfer of share adheres with the pricing guidelines and documentation requirements as specified by the Reserve Bank of India from time to time.
(b)
where SEBI (SAST) guidelines are attracted, subject to adherence with the pricing guidelines and documentation requirements as specified by the Reserve Bank of India from time to time.
(c)
where the pricing guidelines under FEMA,1999 are not met provided that:
(i)
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.;
(ii)
The pricing for the transaction is compliant with specific/explicit , extant and relevant SEBI regulations(such as IPO, book building, block deals, delisting, open/exit offer, substantial acquisition/SEBI(SAST); and
(iii)
CA Certificate to the effect that compliance with relevant SEBI regulations as indicated above is attached to the Form FC-TRS to be filed with the AD bank.
(d)
where the investee company is in the financial services sector provided that:
(i).
9With effect from October 11, 2103, the requirement of NoC(s) from the respective regulators/regulators of the investee company as well as the transferor and transferee entities and filing of such NOCs along with the Form FC-TRS with the AD bank has been waived from the perspective of Foreign Exchange Management Act, 1999 and no such NoC(s) need to be filed along with form FC-TRS. However, any ‘fit and proper/due diligence’ requirement as regards the non-resident investor as stipulated by the respective financial sector regulator shall have to be complied with.
(ii).
The FDI policy and FEMA Regulations in terms of sectoral caps, conditionalities (such as minimum capitalization, etc.), reporting requirements, documentation etc., are complied with. Note: The above general permission also covers transfer by a resident to a non- resident of shares/convertible debentures of an Indian company, engaged in an activity earlier covered under the Government Route but now falling under Automatic Route of the Reserve Bank, as well as transfer of shares by a non-resident to an Indian company under buyback and/or capital reduction scheme of the company. However, this general permission would not be available for the above transactions if they are not meeting the pricing guidelines or in case of transfer of shares/debentures by way of gift from a Resident to a Non-Resident/Non-Resident Indian.
8.B. III 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.
8.B. IV 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. While forwarding the application to the Reserve Bank for approval for transfer of shares by way of gift, the documents mentioned in Annex – 4 should be enclosed. The Reserve Bank considers the following factors while processing such applications:
(a)
The proposed transferee is eligible to hold such security under Schedules 1, 4 and 5 of Notification No. FEMA 20/2000-RB dated May 3, 2000, as amended from time to time.
(b)
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.
(c)
The applicable sectoral cap limit in the Indian company is not breached.
(d)
The transferor (donor) and the proposed transferee (donee) are close relatives as defined in Section 6 of the Companies Act, 2013, as amended from time to time. The current list is reproduced in Annex – 5.
(e)
The value of security to be transferred together with any security already transferred by the transferor, as gift, to any person residing outside India does not exceed the rupee equivalent of USD 50,000 per financial year.
(f)
Such other conditions as stipulated by the Reserve Bank in public interest from time to time.
(iii)
Transfer of shares from NRI to NR requires the prior approval of the Reserve Bank of India.
8.B.V – Escrow account for transfer of shares
AD Category – I banks have been given general permission to open and maintain non- interest bearing Escrow account in Indian Rupees in India on behalf of residents and non- residents, towards payment of share purchase consideration and/or provide Escrow facilities for keeping securities to facilitate FDI transactions relating to transfer of shares. It has also been decided to permit SEBI authorised Depository Participant, to open and maintain, without approval of the Reserve Bank, Escrow account for securities as stated in para 9 (b).
108. B.VI Acquisition of shares under the FDI scheme by a non-resident on a recognized Stock Exchange
A non resident including a Non Resident Indian may acquire shares of a listed Indian company on the stock exchange through a registered broker under FDI scheme provided that:
i.
The non-resident investor has already acquired and continues to hold the control in accordance with SEBI (Substantial Acquisition of Shares and Takeover) Regulations;
ii.
The amount of consideration for transfer of shares to non-resident consequent to purchase on the stock exchange may be paid as below:
(a)
by way of inward remittance through normal banking channels, or
(b)
by way of debit to the NRE/FCNR account of the person concerned maintained with an authorised dealer/bank;
(c)
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;
(d)
the consideration amount may also be paid out of the dividend payable by Indian investee company, in which the said non-resident holds control as (i) above, 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.
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;
8.B.VII The reporting guidelines are given in Section V of the Master Circular.
8.C. Issue of Rights/Bonus shares
An Indian company may issue Rights/Bonus shares to existing non-resident shareholders, subject to adherence to sectoral cap, reporting requirements, etc. Further, such issue of bonus/rights shares have to be in accordance with other laws/statutes like the Companies Act, 2013, SEBI (Issue of Capital and Disclosure Requirements), Regulations 2009, etc.
♦
Issue of Right shares to OCBs: OCBs have been de-recognised as a class of investor with effect from September 16, 2003. Therefore, companies desiring to issue rights share to such erstwhile OCBs will have to take specific prior permission from the Reserve Bank. As such, entitlement of rights share is not automatically available to OCBs. However, bonus shares can be issued to erstwhile OCBs without prior approval of the Reserve Bank, provided that the OCB is not in the adverse list of RBI.
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Additional allocation of rights share by residents to non–residents : Existing non-resident shareholders are allowed to apply for issue of additional shares/convertible debentures/preference shares over and above their rights share entitlements. The investee company can allot the additional rights shares out of unsubscribed portion, subject to the condition that the overall issue of shares to non-residents in the total paid-up capital of the company does not exceed the sectoral cap.
8. D. Issue of shares under Employees Stock Option Scheme (ESOPs)
An Indian Company may issue shares under ESOPs to its employees or employees of its joint venture or wholly owned subsidiary abroad who are resident outside India, other than to the citizens of Pakistan. Citizens of Bangladesh can invest with the prior approval of the FIPB. The face value of the shares to be allotted under the scheme to the non-resident employees should not exceed 5 per cent of the paid-up capital of the issuing company. Shares under ESOPs can be issued directly or through a Trust subject to the condition that the scheme has been drawn in terms of the relevant regulations issued by the SEBI.
8. E. Conversion of ECB/Lumpsum Fee/Royalty/Import of capital goods by units in SEZs in to Equity/Import payables/Pre incorporation expenses
(i)
Indian companies have been granted general permission for conversion of External Commercial Borrowings (ECB) [i.e other than import dues deemed as ECB or Trade Credit as per RBI guidelines] into shares/convertible debentures, subject to the following conditions and reporting requirements:
(a)
The activity of the company is covered under the Automatic Route for FDI or the company has obtained Government’s approval for foreign equity in the company;
(b)
The foreign equity after conversion of ECB into equity is within the sectoral cap, if any;
(c)
Pricing of shares is determined as per SEBI regulations for listed company or fair value worked out as per any internationally accepted pricing methodology for valuation of shares for unlisted company;
(d)
Compliance with the requirements prescribed under any other statute and regulation in force;
(e)
The conversion facility is available for ECBs availed under the Automatic or Approval Route and is applicable to ECBs, due for payment or not, as well as secured/unsecured loans availed from non-resident collaborators.
(ii)
General permission is also available for issue of shares/preference shares against lump-sum technical know-how fee, royalty due for payment/repayment, under automatic route or SIA/FIPB route, subject to pricing guidelines of RBI/SEBI and compliance with applicable tax laws.
(iii)
Units in Special Economic Zones (SEZs) are permitted to issue equity shares to non-residents against import of capital goods subject to the valuation done by a Committee consisting of Development Commissioner and the appropriate Customs officials.
(iv)
Issue of equity shares against Import of capital goods/machinery/equipment (excluding second-hand machinery), is allowed under the Government route, subject to the compliance with the following conditions:
(a)
The import of capital goods, machineries, etc., made by a resident in India, is in accordance with the Export/Import Policy issued by the Government of India as notified by the Directorate General of Foreign Trade (DGFT) and the regulations issued under the Foreign Exchange Management Act (FEMA), 1999 relating to imports issued by the Reserve Bank;
(b)
There is an independent valuation of the capital goods/machineries/equipments by a third party entity, preferably by an independent valuer from the country of import along with production of copies of documents/certificates issued by the customs authorities towards assessment of the fair-value of such imports;
(c)
The application should clearly indicate the beneficial ownership and identity of the importer company as well as the overseas entity; and
(d)
Applications complete in all respects, for conversions of import payables for capital goods into FDI being made within 180 days from the date of shipment of goods.
(v)
Issue of equity shares against Pre-operative/pre – incorporation expenses (including payment of rent etc.) is allowed under the Government route, subject to compliance with the following conditions:
(a)
Submission of FIRC for remittance of funds by the overseas promoters for the expenditure incurred.
(b)
Verification and certification of the pre-incorporation/pre-operative expenses by the statutory auditor.
(c)
Payments being made by the foreign investor to the company directly or through the bank account opened by the foreign investor, as provided under FEMA regulations. (as amended vide AP DIR Circular No. 104 dated May 17, 2013) .
(d)
The applications, complete in all respects, for capitalisation being made within the period of 180 days from the date of incorporation of the company.
General conditions for issue of equity shares against Import of capital goods/machinery/equipment and Pre-operative/pre-incorporation expenses:
(a)
All requests for conversion should be accompanied by a special resolution of the company;
(b)
Government’s approval would be subject to pricing guidelines of RBI and appropriate tax clearance.
(vi)
Issue of shares to a non-resident against shares swap i.e., in lieu for the consideration which has to be