RBI issues Master Direction on Foreign investment in India

Transcription

1 RBI issues Master Direction on Foreign investment in India Foreign Investment in India is regulated in terms of clause (b) sub-section 3 of section 6 and section 47 of the Foreign Exchange Management Act, 1999 (FEMA) read with Foreign Exchange Management (Transfer or Issue of a Security by a Person resident Outside India) Regulations, 2017 issued vide Notification No. FEMA 20(R)/2017-RB dated November 7, These Regulations are amended from time to time to incorporate the changes in the regulatory framework and published through amendment notifications. Within the contours of the Regulations, Reserve Bank of India also issues directions to Authorised Persons under Section 11 of the Foreign Exchange Management Act (FEMA), This Master Direction lays down the modalities as to how the foreign exchange business has to be conducted by the Authorised Persons with their customers/ constituents with a view to implementing the regulations framed. Instructions issued on Foreign Investment in India and its related aspects under the FEMA have been compiled in the appended Master Direction Master Direction Foreign Investment in India by RBI 1.Introduction 1.1 The Foreign Exchange Management Act, 1999 (FEMA) empowers the Reserve Bank to frame regulations to prohibit, restrict or regulate transfer or issue of any security by a person resident outside India. These regulations are notified as Foreign Exchange Management (Transfer or Issue of Security by a Person resident Outside India) Regulations, 2017 under Notification No. FEMA 20(R)/2017-RB of November 7, 2017, [FEMA 20(R)]. 1.2 An investment made by a person resident outside India in accordance with FEMA or the rules or the regulations framed there under and held on the date of commencement of FEMA 20(R), shall be deemed to have been made in accordance with

2 FEMA 20(R) and shall accordingly be governed by FEMA 20(R). 1.3 A person resident outside India may hold, own, transfer or invest in a security in India if such security was acquired, held or owned by such person when he was resident in India or inherited from a person who was resident in India. Such investment will be held by such person on a non-repatriable basis. 2. Key terms Some key terms used in this Master Direction are given below: 2.1 Act is the Foreign Exchange Management Act, 1999 (42 of 1999). 2.2 Capital Instruments are equity shares, debentures, preference shares and share warrants issued by an Indian company. The details of what shall construe capital instruments are at para 4 of this Master Direction. 2.3 Convertible Note is an instrument issued by a startup company evidencing receipt of money initially as debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of such startup company, within a period not exceeding five years from the date of issue of the convertible note, upon occurrence of specified events as per the other terms and conditions agreed to and indicated in the instrument. 2.4 E-commerce is buying and selling of goods and services including digital products over digital & electronic network E-commerce entity are the following entities conducting the e-commerce business a company incorporated under the Companies Act, 2013 or a foreign company covered under section 2 (42) of the Companies Act, 2013 or an office, branch or agency in India owned or controlled by a person resident outside India and Inventory based model of e-commerce means an e-commerce activity where inventory of goods and services is owned by e-commerce entity and is sold to the consumers directly Market place model of e-commerce means providing of an information technology platform by an e-commerce entity on a digital & electronic network to act as a facilitator between buyer and seller Foreign investment is not permitted in Inventory based model of e-commerce. 2.5 FDI linked performance conditions is the sector specific conditions stipulated in regulation 16 of FEMA 20(R) for companies receiving foreign investment. 3. Prohibited sectors/ persons 3.1 Investment by a person resident outside India is prohibited in the following sectors: Lottery Business including Government/ private lottery, online lotteries.

3 Gambling and betting including casinos. Chit funds (except for investment made by NRIs and OCIs on a non-repatriation basis). Nidhi company. Trading in Transferable Development Rights (TDRs). Real Estate Business or Construction of Farm Houses. Manufacturing of Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes. The prohibition is on manufacturing of the products mentioned and foreign investment in other activities relating to these products including wholesale cash and carry, retail trading etc. will be governed by the sectoral restrictions laid down in Regulation 16 of FEMA 20(R). Activities/ sectors not open to private sector investment viz., (i) Atomic energy and (ii) Railway operations 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 3.2 Any investment by a person who is a citizen of Bangladesh or Pakistan or is an entity incorporated in Bangladesh or Pakistan requires prior Government approval. 3.3 A person who is a citizen of Pakistan or an entity incorporated in Pakistan can, only with the prior Government approval, invest in sectors/ activities other than defence, space, atomic energy and sectors/ activities prohibited for foreign investment. 4. Capital Instruments 4.1 An Indian company is permitted to receive foreign investment by issuing capital instruments to the investor. The capital instruments are equity shares, debentures, preference shares and share warrants issued by the Indian company. 4.2 Equity shares: Equity shares are those issued in accordance with the provisions of the Companies Act, 2013 and will include equity shares that have been partly paid. 4.3 Partly paid shares: Partly paid shares issued on or after July 8, 2014 will be considered as capital instruments Partly paid shares that have been issued to a person resident outside India should be fully called-up within twelve months of such issue Twenty five percent of the total consideration amount (including share premium, if any), has to be received upfront and the balance consideration towards fully-paid equity shares should be received within a period of twelve months from the date of issue of partly-paid shares The time period of 12 months for receipt of the balance consideration need 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, 2009 regarding monitoring agency In case of an unlisted Indian company, the balance consideration amount can be received after 12 months where the

4 issue size exceeds rupees five hundred crore. However, the investee company should 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) should report to the investee company as prescribed by the SEBI regulations, ibid, for the listed companies. 5. Permitted Investments by persons resident outside India Unless otherwise specifically stated, any investment made by a person resident outside India shall be subject to the entry routes, sectoral caps or the investment limits, as the case may be, and the attendant conditionalities for making such investment. A person resident outside India may make investment as stated hereinafter. 5.1 Subscribe/ purchase/ sale of capital instruments of an Indian company is permitted 5.2 Purchase/ sale of capital instruments of a listed Indian company on a recognised stock exchange in India by Foreign Portfolio Investors is permitted 5.3 Purchase/ sale of Capital Instruments of a listed Indian company on a recognised stock exchange in India by Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) on repatriation basis is permitted 5.4 Purchase/ sale of Capital Instruments of an Indian company or Units or contribution to capital of a LLP or a firm or a proprietary concern by Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) on a Non-Repatriation basis is permitted 5.5 Purchase/ sale of securities other than capital instruments by a person resident outside India is permitted 5.6 Investment in a Limited Liability Partnership (LLP) is permitted 5.7 Investment by a Foreign Venture Capital Investor (FVCI) is permitted 5.8 Investment in an Investment Vehicle is permitted 5.9 Issue/ transfer of eligible instruments to a foreign depository for the purpose of issuance of depository receipts by eligible person(s) is permitted 5.10 Purchase/ sale of Indian Depository Receipts (IDRs) issued by Companies Resident outside India is permitted The detailed Master Direction on Foreign investment in India released by RBI is enclosed for your kind reference. Please contact for any query related to this mail to Ms. Neha Gupta, Research Associate at neha.gupta@phdcci.in with a cc to Dr. S P Sharma, Chief Economist at spsharma@phdcci.in and Ms. Surbhi Sharma, Senior Research Officer at surbhi@phdcci.in, PHD Chamber of Commerce & Industry. Warm regards,

5 Dr. S P Sharma Chief Economist PHD Chamber of Commerce and Industry PHD House, 4/2 Siri Institutional Area August Kranti Marg, New Delhi Ph.: , Fax: , spsharma@phdcci.in Website: