Foreign Direct Investments

Q.1. What are the forms in which business can be conducted by a foreign company in India?

A.1 A foreign company planning to set up business operations in India has the following options:

• Joint Ventures; or

• Wholly Owned Subsidiaries As an office of a foreign entity through

• Liaison Office / Representative Office

• Project Office

• Branch Office

Such offices can undertake activities permitted under the foreign exchange management (Establishement in India of branch office or other place of business) regulations, 2000.

Q. 2. How does a foreign company invest in India? What are the regulations pertaining to issue of shares by Indian companies to foreign collaborators/ investors?

A. 2 Automatic Route

FDI up to 100% is allowed under the automatic route in all activities/ sectors except the following which require prior approval of the Government:

1. Where provisions of Press Note 1 (2005 Series) issued by the Government of India are attracted.
2. Where more than 24% foreign equity is proposed to be inducted for manufacture of items reserved for the Small Scale sector.
3. FDI in sectors/activities to the extent permitted under Automatic Route does not require any prior approval either by Government or the Reserve Bank of India.
4. The investors are only required to notify the Regional Office concerned of the Reserve Bank of India within 30 days of receipt of inward remittances and file the required documents along with form FC-GPR with that Office within 30 days of issue of shares to non-resident investors.

Government Route

FDI in activities not covered under the automatic route requires prior Government approval and are considered by Investment Promotion Board (FIPB), 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.

General Permission of RBI under FEMA

Indian companies having foreign investment approval through FIPB route do not require any further clearance from Reserve Bank of India for receiving inward remittance and issue of shares to the non-resident investors. The companies are required to notify the concerned Regional Office of the Reserve Bank of India of receipt of inward remittances within 30 days of such receipt and submit form FC-GPR within 30 days of issue of shares to the non­resident investors.

Q.3. Which are the sectors where FDI is not allowed in India, under the Automatic Route as well as Government Route?

i) Retail Trading (except single brand product retailing)

ii) Atomic Energy

iii) Lottery Business

iv) Gambling and Betting

v) Business of Chit Fund

vi) Nidhi Company

vii) Agricultural or plantation activities (cf Notification No. FEMA 94/2003-RB dated June 18, 2003).

viii) 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)

ix) Trading in Transferable Development Rights (TDRs).

Q.4. What should be done after investment is made under the Automatic Route or with Government approval?

A.4 A two-stage reporting procedure has been introduced for this purpose.

• On receipt of money for investment:

• Within 30 days of receipt of money from the non-resident investor, the Indian company will report to the Regional office of the Reserve Bank of India, under whose jurisdiction its Registered Office is located, containing details such as:

• Name and address of the foreign investor/s

• Date of receipt of funds and their rupee equivalent

• Name and address of the authorised dealer through whom the funds have been received, and

• Details of the Government approval, if any.

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 concerned Regional Office of the Reserve Bank of India.

• Certifcate 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 proposal is within the sectoral policy / cap permissible under t h e automatic route of RBI and it fulfills all the condition laid down for investments under the Automatic route namely

a) Non-resident entity/ies (other than individuals) to whom it has issued shares does / do not have any existing joint venture or technology transfer or trade mark agreement in India in the same field.

b) The company is not investing in an SSI unit & the investment limit of 24 % has been observed/ requisite approvals have been obtained.

c) Shares have been issued on rights basis and the shares are issued to non-residents at a price that is not lower than that at which shares are/ were issued to residents.

OR

d) Shares issued are bonus shares.

OR

e) Shares have been issued under a scheme of merger and amalgamation of two or more Indian companies or reconstruction by of demerger or otherwise of an Indian company, duly approved by a court in India.

• Shares have been issued in terms of SIA/FIPB approval No. …… dated…

Certifcate from Statutory Auditors or Chartered Accountant indicating the manner of arriving at the price of the shares persons resident outside India.

Q.5. What are the guidelines for transfer of existing shares from non-residents to residents or residents to non residents?

A.5 Transfer from Non-Residents to Residents

The term ‘transfer’ is defined under FEMA as including “sale, purchase, acquisition, mortgage, pledge, gifit , loan or any other form of transfer of right possession or lien”. (Section 2 (ze) of FEMA, 1999).

The FEMA Regulations give specific permission covering the following forms of transfer i.e. transfer by way of sale and gifit . These permissions are discussed below:

Transfer by Way of Sale

A person resident outside India can freely transfer share/convertible debenture by way of sale to a person resident in India as under

• Any person resident outside India (other than NRls/OCBs) can transfer by way of sale the shares/ convertible debentures to any person resident outside India; subject to the condition that the acquirer or transferee does not have any previous venture or tie-up in India in the same field or sector.

• A non-resident Indian (NRI) or an erstwhile Overseas Corporate Body may transfer by way of sale, the shares/convertible debentures held by him to another NRI only.

• Any person resident outside India may sell share/convertible debenture acquired in accordance with FEMA Regulations on a recognized Stock Exchange in India through a registered broker.

Transfer by Way of Gifit

A person resident outside India can freely transfer share/convertible debenture by way of gifit to a person resident in India as under

• Any person resident outside India, (not being a non-resident Indian or an erstwhile overseas corporate body), can transfer by way of gifit the shares/ convertible debentures to any person resident outside India; subject to the condition that the
acquirer or transferee does not have any previous venture or tie up in India in the same field or sector.

• A non-resident Indian (NRI) may transfer by way of gifit , the shares/ convertible debentures held by him to another NRI only.

• Any person resident outside India may transfer share/ convertible debenture to a person resident in India by way of gifit .

Transfer from Resident to Non­ Resident

Transfer by Way of Sale-General Permission under Regulation 10 of Notification No. FEMA 20/2000-RB dated May 2000.

A person resident in India may transfer to a person resident outside India any share/ convertible debenture of an Indian Company whose activities fall under the Automatic Route for FDI subject to the Sectoral Limits, by way of sale subject to complying with pricing guidelines, documentation and reporting requirements for such transfers, as may be specified by the Reserve Bank of India from time to time.

This general permission is not available where:

• Indian Company whose shares or convertible debentures are proposed to be transferred is in financial service sector. Financial services sector means service rendered by banking and non- banking companies regulated by the Reserve Bank, Insurance companies regulated by Insurance Regulatory and Development Authority (IRDA) and other companies regulated by any other financial regulator, as the case may be.

• The transfer falls within the provisions of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997

Transfer by Way of Gifit

A person resident in India can transfer by way of gifit shares to a person resident outside India in the following ways:

• A person resident in India who proposes to transfer to a person resident outside India [other than erstwhile OCBs] any security by way of gifit , 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 gifit . The gifts are permissible up to a limit of:
(i) 5% of the paid up capital of the company per donee, and
(ii) Amount does not exceed USD 25,000 per calendar year for each donor. The valuation of these shares shall be in accordance with pricing guidelines prescribed.

Q.6. What if the transfer from resident to non-resident does not fall under the above facility?

A.6. In case the transfer does not fit into any of the above, either the transferor (resident) or the transferee (non-resident) can make an application for the Reserve Bank’s permission for the transfer. The application has to be accompanied with the following documents;

• A copy of FIPB approval (if required).

• Consent letter from transferor and transferee clearly indicating the number of shares, name of the investee Company and the price at which the transfer is proposed to be effected.

• The present /post transfer shareholding pattern of the Indian investee company showing the equity participation by residents and non-residents category-wise.

• Copies of the Reserve Bank of India’s approvals/ acknowledged copies of FCGPR evidencing the existing holding of non-residents.

• If the sellers/transferors are NRls / OCBs, the copies of the Reserve Bank of India’s approvals evidencing the shares held by them on repatriation / non-repatriation basis.

• Open Offer document filed with SEBI if the acquisition of shares by non-resident is under SEBI Takeover Regulations.

• Fair Valuation Certifcate from Chartered Accountant indicating the value of shares as per the following guideline.

• In the case of unlisted shares the fair value is worked out as per the erstwhile Controller of Capital Issue/s.

• For listed shares, the price worked out is not less than the higher of average weekly high and low quotations for 6 months and average of daily high and low quotation or two weeks preceding 30 days prior to the date of making application to FIPB.

Q.7. Are the investments and profits earned in India repatriable?

A.7. All foreign investments are freely repatriable except for the cases where NRls choose to invest specifically under non-repatriable schemes. Dividends declared on foreign investments can be remitted freely through an Authorised Dealer.

Q.8. What are the guidelines on issue and valuation of shares in case of existing companies?

A.8 • Allotment of shares on preferential basis shall be as per the requirements of the Companies Act, 1956, which will require special resolution in case of a public limited company.

• In case of listed companies, valuation shall be as per the Reserve Bank of India /SEBI guidelines as follows:

• The issue price shall be either at:

a) The average of the weekly high and low of the closing prices of the related shares quoted on the stock exchange during the six months preceding the relevant date or

b) The average of the weekly high and low of the closing prices of the related shares quoted on the stock exchange during the two weeks preceding the relevant date.

• In case of unlisted companies, valuation shall be done in accordance with the guidelines issued by the erstwhile Controller of Capital Issues.

Q.9. What are the regulations pertaining to issue of ADRs/GDRs by Indian companies?

A.9. Indian companies are allowed to raise capital in the international market through the issue of ADRs/ GDR. They can issue ADRs/GDRs without obtaining prior approval from RBI. if it is eligible to issue ADRs/GDRs in terms of 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.

After the issue of ADRs/GDRs, the company has to file a return in the proforma given in Annexure ‘C’ to the RBI Notification No. FEMA.20/ 2000- RB dated May 3, 2000. The company is also required to file a quarterly return in a form specified in Annexure ‘D’ of the same regulations.

There are no end-use restrictions on GDR/ADR issue proceeds, except for an express ban on investment in real estate stock markets.

Q. 10. What is meant by Sponsored ADR & Two-way fungibility Scheme of ADR/GDR?

A.10. Sponsored ADR/GDR: An Indian company may sponsor an issue of ADR/ GDR with an overseas depository against shares held by its shareholders at a price to be determined by the Lead Manager. The Operative guidelines for the same have been issued vide A.P. (DIR Series) Circular No.52 dated November 23, 2002.

Q.11. Can Indian companies issue Foreign Currency Convertible Bonds (FCCBs)?

A.11. FCCBs can be issued by Indian companies in the overseas market in accordance with Scheme for Issue of foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993. The FCCB issue needs to conform to External Commercial Borrowing guidelines, issued by RBI vide Notification No. FEMA 3/2000 dated May 3, 2000 as amended from time to time.

Q.12. Can I invest through Preference Shares? What are the regulations applicable in case of such investments?

A.12. Foreign investment through preference shares is treated as foreign direct investment. Foreign investment in preference shares is considered as part of share capital and fall outside the External Commercial Borrowing (ECB) guidelines/cap.

Preference shares to be treated as foreign direct equity for purpose of sectoral caps on foreign equity, where such caps are prescribed, provided they carry a conversion option. If the preference shares are structured without such conversion option, they would fall outside the foreign direct equity cap.

Q.13. Can shares be issued against Lumpsum Fee, Royalty and ECB?

A.13. Issue of equity shares against lump sum fee, royalty and external commercial borrowings (ECBs) in convertible foreign currency are permitted, subject to meeting all applicable tax liabilities and sector specific guidelines.

Q.14. Other than issue of shares under Automatic /Government Route, what other general permissions are available under Notification No.FEMA 20 dated 3-5-2000?

A.14. 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.15. Can I invest in unlisted shares issued by a company in India?

A.15. Yes, as per the regulations/guidelines issued by the Reserve Bank of India/ Government of India, investment can be made in unlisted shares of Indian companies.

Q. 16. Can a foreigner set up a partnership / proprietorship concern in India?

A.16. Only NRls/PIOs are allowed to set up partnership/proprietorship concerns in India. Even for NRls/ PIOs investment is allowed on non-repatriation basis.

Q.17. Can I invest in Rights shares issued by an Indian company at a discount?

A.17. There are no restrictions under FEMA for investment in Rights shares at a discount, provided the rights shares so issued are being offered at the same price to residents and non-residents.

Q.18. What are the payment parameters for foreign technology transfer under the Automatic Route of Reserve Bank of India? How should royalty be calculated?

A.18. Payments for foreign technology collaboration by Indian companies are allowed under the automatic route subject to the following limits:

• Lump sum payments not exceeding US$ 2 million.

• Royalty payable being limited to 5 per cent for domestic sales and 8 per cent for exports, without any restriction on the duration of the royalty payments.

• The royalty limits are net of taxes and are calculated according to standard conditions.

• The royalty will be calculated on the basis of the net ex-factory sale price of the product, exclusive of excise duties minus cost of the standard bought-out components and the landed cost of imported components, irrespective of the source of procurement including ocean freight, insurance, custom duties, etc.

• RBI has delegated the powers to ADs to make payment of royalty under such agreements. The requirement of registration of the agreement with the Regional Office of Reserve Bank of India has been done away with.

Q.19. What should be done, if Automatic Route of Reserve Bank of India for technology transfer is not available?

A.19. Proposals, which do not satisfy the parameters prescribed for automatic route of RBI, require clearance from Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.

Q.20. What are the regulations for Foreign Venture Capital Investment?