ICAI WIRC Seminar. Dos and Don ts for NRIs. March 1, 2014 C.A. Rahul Manjrekar For Discussion purposes only

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1 ICAI WIRC Seminar Dos and Don ts for NRIs 1

2 Contents Meaning - NRI and PIO? Dos and Don ts - General Emigrating Indians NRIs residing abroad Investment opportunities in India for NRIs Borrowing and Lending by/to NRIs Overview of bank accounts for NRIs Remittance from NRO accounts of NRIs Returning NRI s typical questions 2

3 Meaning NRI & PIO 3

4 Who is a NRI? * Non-resident Indian (NRI) means a person resident outside India who is a citizen of India or is a Person of Indian Origin A PIO# means a citizen of any country other than Bangladesh or Pakistan, if: (a) he at any time held an Indian passport; or (b) he or either of his parents or any of his grand-parents was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or (c) the person is a spouse of an Indian citizen or a person referred to in sub-clause (a) or (b) *As per FEM (Deposit regulations), 2000 # NRI could mean differently due to difference in PIO definition 4

5 Dos and Don ts for NRIs - General 5

6 Approaching FEMA transactions - Dos Distinguish between PRII and PROI Distinguish between Capital & Current Account transactions Inform change of residential status to relevant parties Plan ahead: keep track of investments from INR & overseas funds remitted to India DOs Identify transactions requiring approvals Clearly understand repatriability of maturity/sale proceeds of Indian investments Comply with statutory timelines for various filings/ reporting 6

7 Approaching FEMA transactions Don ts Undertake capital account transactions without general/ special approval Undertake current account transactions leading to drawal of foreign exchange from India beyond ceilings/ without approvals Instruct residents to make payments on their behalf Donts Make debits/ credits to bank accounts otherwise than as prescribed Net off receivables and payables otherwise than as prescribed 7

8 Approaching FEMA transactions Don ts Investing in prohibited entities (incorporated or not) engaged in Donts 8 the business of chit fund, or Nidhi Company, or agricultural or plantation activities, or real estate business, or construction of farm houses, or trading in TDRs real estate business shall not include development of townships, construction of residential/commercial premises, roads or bridges.

9 Emigrating Indians 9

10 FEMA residential status PROI - conditions Purpose of leaving India For or on taking up employment overseas For carrying on outside India a business or vocation Any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period Students going abroad In either case the individual would qualify as a person resident outside India 10

11 Emigrating Indians An Emigrant s dilema Do I need to inform anyone of change in residential status from R to NRI? How much time do I have to do that? So many things to complete before I leave 11 Will there be any benefits of doing so? Will anybody ever get to know? What if I don t inform? Are there any risks of not informing relevant parties? Is there penal exposure?

12 Emigrating Indians Typical stakes of residents in India Bank accounts, Fixed Deposit receipts, credit cards Continuation of share in partnership firms and their bank accounts Continuation as Director in Pvt/ Public companies, trustee etc Life insurance policies Holding Immovable property and not dealing in them Securities in India (shares, debentures, units etc) 12

13 Emigrating Indians Typical stakes of residents in India Loans taken from a resident while in India Loans given to a resident in rupees Loans taken from while in India from AD bank Housing loan taken from HDFC while resident Jewellery purchased in rupees while resident 13

14 Emigrating Indians Typical loans in India availed as residents 14 Borrower Lender Regulation Resident individual (who turned NRI) AD bank Sub reg 9 of FEMA 4 Resident individual (who turned NRI) Resident individual Sub reg 3 of FEMA 4 NRI Housing finance company Sub reg 8 of FEMA 4 NRI AD bank in India Sub reg 7 of FEMA 4 Resident Indian Resident individual (who turned NRI) Sub reg 10 of FEMA 4

15 Emigrating Indians Safeguards for an Emigrant Banks Inform the bank of the change in residential status Convert the bank accounts to NRO Nominate a resident person as a joint holder who can operate the NRO bank account while he is abroad Execute a PoA in favor of a resident to deal with Government agencies, banks etc 15

16 Emigrating Indians Safeguards for an Emigrant Companies in which security is held Inform the company of the change in residential status Inform the company of the purpose of visit Inform the company of the date of departure from India and tenure of stay abroad Provide the foreign address Provide an undertaking that he will not seek repatriation of capital (unless otherwise allowed by RBI) 16

17 Investment opportunities in India for NRIs 17

18 Investment opportunities in India for NRIs Broadly, NRIs may invest in India on: a repatriation basis a non repatriation basis 18

19 Investment opportunities in India for NRIs Investments on repatriation basis Government dated securities (other than bearer securities)/ treasury 19 bills. Units of domestic mutual funds. Bonds issued by a public sector undertaking in India. Shares in Public Sector Enterprises being disinvested by the Govt of India Shares and convertible debentures of Indian companies under FDI scheme (including automatic route & FIPB). Shares and convertible debentures of Indian companies through stock exchange under Portfolio Investment Scheme ( PIS ) Perpetual debt instruments and debt capital instruments issued by banks in India.

20 Investment opportunities in India for NRIs Investments on non repatriation basis Government dated securities/ treasury bills Units of domestic mutual funds Units of Money Market Mutual Funds in India The capital of a firm or proprietary concern in India, not engaged in any agricultural or plantation activity or real estate business Specified deposits Commercial Paper issued by an Indian company Shares and convertible debentures of Indian companies other than under PIS.. 20

21 Investment opportunities in India for NRIs Can NRIs sell securities purchased in India 21

22 Investment opportunities in India for NRIs Investment in immovable property other than agricultural land/ plantation property or a farm house out of repatriable and non-repatriable funds. Can NRI invest in commercial property? 22

23 Investment opportunities in India for NRIs Can proceeds from disposal of immovable property be repatriated? What happens to the balance amount? What happens to sale proceeds of a third residential property? What happens to sale proceeds of commercial property? 23

24 Investment opportunities in India for NRIs Can housing loan be availed by NRI from a Housing Finance Company in India? Can the housing loans be repaid by resident Indians: Can the housing loans taken while resident in India be repaid from abroad through inward remittances by NRI? 24

25 Lending to residents by NRIs Can NRI lend to a person resident in India on a repatriation basis? Can NRI lend to a person resident in India on a non repatriation basis? 25

26 Borrowing from residents by NRIs Borrowing of funds from AD in India Borrowing of funds from persons other than ADs in India 26

27 Investment opportunities in India for NRIs Can NRI maintain bank accounts in India. If yes what type of accounts? NRO NRE FCNR-B 27

28 Overview of different bank accounts FCNR-B NRE NRO NRIs NRIs (Individuals/entities of Bangladesh/ Pakistan nationality /ownership require prior approval of RBI) (Individuals/entities of Bangladesh/ Pakistan nationality /ownership require prior approval of RBI) PROI (except Nepal/ Bhutan resident) (Individuals/ entities of Bangladesh/ Pakistan nationality/ ownership require prior approval of RBI) With two or more nonresident Indians. With two or more nonresident Indians May be held jointly with residents Resident close relatives on former or survivor basis Resident close relatives on former or survivor basis Currency in which account is denominated Pound Sterling, US Dollar, Jap. Yen, Euro, Canadian Dollar and Australian Dollar Indian Rupees Type of account Term Deposit only Who can open Joint holding 28 March 1, 2014 C.A. Rahul Manjrekar Savings, Current, Recurring, Fixed For Discussion purposes only Deposit Indian Rupees Savings, Current, Recurring, Fixed Deposit

29 Overview of different bank accounts FCNR-B 29 NRE NRO Foreign currency loans in India to third parties: Permitted without any limit subject to usual margin requirements Permitted without any limit subject to usual margin requirements Not permitted Foreign currency loans in India to account holder: Permitted without any limit subject to usual margin requirements Permitted without any limit subject to usual margin requirements Not permitted Loans outside India to account holder: Permitted Permitted Not permitted Loans outside India to third parties: Permitted Permitted Not permitted

30 Overview of different bank accounts FCNR-B NRE NRO Loans to accountholder in India: Permitted Permitted Permitted to rules as applicable to residents Purpose of loan in India to account holder (i) personal purposes or for carrying on permitted business activities#. (i) personal purposes or for carrying on permitted business activities#. ii) FDI on non-repatriation basis ii) FDI on non-repatriation basis Personal requirement an/ or business purpose# iii) Acquisition of flat/ house in India for own residential use iii) Acquisition of flat/ house in India for own residential use Loans to third parties in India: Permitted Permitted Permitted Purpose of Loan in India to third parties Proceeds to be used for: Personal purposes, business# Loan proceeds to be used for: Personal purposes, business# Provided no consideration is exchanged overseas for this security. Provided no consideration is exchanged overseas for this security. Personal requirement an/ or business purpose# # cannot utilized for the purpose of re-lending or for carrying on agriculture or plantation activities March 1, 2014be C.A. Rahul Manjrekar For Discussion purposes only 30The loans or for investment in real estate business.

31 Remittances from India Can the NRI draw money from his NRO account while staying abroad General Permission to remit current incomes USD 1 million scheme What kind of remittances are permitted for students going abroad for education? 31

32 NRIs returning to India Typical questions 32

33 NRIs returning to India Inform the following of change in residential status: Banker (also where demat accounts are held) Companies in which Shares, debentures etc are held Is there a time limit for the above intimation? 33

34 Returning Indians Can one continue to hold assets abroad? As per Section 6(4) of FEMA returning NRIs are permitted to hold, own, transfer or invest in foreign currency, security or any immovable property situated outside India which was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India To be able to enjoy the above exemption, is there a specified minimum time for which one must stay overseas? Can one reinvest earnings from assets which acquired overseas while one was a person resident outside India? 34

35 Returning Indians Can one continue proprietary/ partnership firm abroad? Can one continue to hold movable assets such as car, jewellery etc outside India? Can one continue to hold bank accounts abroad after returning to India? What is the RFC account scheme and advantages of the same? 35

36 Thank you Please note that discussions in this presentations are purely of academic nature and based on the speaker s interpretation of the law. Any views expressed by the speaker may not necessarily be the view of any regulator(s). While the presentation seeks to capture important aspects of the relevant regulations, they may not be adequate for concluding commercial decisions. Expert advice based on actual facts is imperative prior to executing any transaction. 36

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