An Indian company issuing shares/ convertible debentures to a person resident outside India shall receive the amount of consideration by:
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 shall be refunded. Further, 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.
Tenor of convertible instruments will be guided by the instructions framed under the Companies Act, 2013 and the rules framed thereunder. However, the investee company should ensure that the price/ conversion formula of convertible capital instruments is determined upfront at the time of issue of the instruments. 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 instruments, in accordance with the extant FEMA regulations.
A Convertible Note is an instrument issued by a start-up 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.
A person resident outside India (other than an individual who is citizen of Pakistan or Bangladesh or an entity which is registered/ incorporated in Pakistan or Bangladesh), may purchase convertible notes issued by an Indian start-up company for an amount of twenty five lakh rupees or more in a single tranche. A start-up company engaged in a sector where foreign investment requires Government approval may issue convertible notes to a non-resident only with approval of the Government. The amount of consideration should be received by inward remittance through banking channels or by debit to the NRE/ FCNR (B)/ Escrow account maintained by the person concerned.
The routes under which foreign investment can be made is as under:
An Indian Company can receive foreign investment by issue of
The above shall be known as “FDI compliant instruments” and can contain an optionality clause subject to a minimum lock-in period of one year or as prescribed for the specific sector, whichever is higher, but without any option or right to exit at an assured price.
Non-convertible/ optionally convertible/ partially convertible preference shares issued as on and up to April 30, 2007 and optionally convertible/ partially convertible debentures issued up to June 7, 2007 till their original maturity are reckoned to be FDI compliant instruments. Non-convertible/ optionally convertible/ partially convertible preference shares issued after April 30, 2007 and optionally convertible/ partially convertible debentures issued after June 7, 2007 shall be treated as debt and shall require conforming to External Commercial Borrowings guidelines regulated under Foreign Exchange Management (Borrowing and Lending in Foreign Exchange Regulations), 2000, as amended from time to time.
Foreign investment is prohibited in the following sectors:
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.
The term ‘transfer’ is defined under FEMA, 1999 as "sale, purchase, acquisition, mortgage, pledge, gift, loan or any other form of transfer of right, possession or lien” {Section 2 (ze) of FEMA, 1999}.
The following share transfers are allowed without the prior approval of the Reserve Bank of India subject to the conditions laid down in FEMA 20:
Prior Government approval shall be obtained for any transfer in case the company is engaged in a sector which requires Government approval.
Transfer of shares by way of sale or gift by a NRI to any NRI;
Prior Government approval shall be obtained for any transfer in case the company is engaged in a sector which requires Government approval
Transfer by way of gift by a person resident outside India to a resident;
Transfer by way of sale on a recognized stock exchange by a person resident outside India;
Transfer by way of sale or gift by a resident to a person outside India subject to conditions prescribed in Regulation 10 of FEMA 20;
The cases have to be approved by Government of India or the Reserve Bank
(1) Transfer of shares of companies engaged in sector falling under the Government Route.
(2) Transfer of shares resulting in foreign investments in the Indian company, breaching the sectoral cap applicable.
(1) 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.
(2) Any other case not covered by General Permission.
The sale consideration in respect of the shares purchased by a person resident outside India shall be remitted to India through normal banking channels.
In case the buyer is a Foreign Institutional Investor (FII) / Foreign Portfolio Investor (FPI), payment can be made by debit to its Special Non-Resident Rupee Account.
In case the buyer is an NRI, the payment shall be remitted to India through normal banking channel or by way of debit to his NRE/FCNR (B) accounts. If the shares are acquired on non-repatriation basis by NRI, the consideration can also be paid by debit to his NRO account.
The sale proceeds of shares (net of taxes) sold by a person resident outside India) may be remitted outside India.
In case of FII/ FPI the sale proceeds may be credited to its special Non-Resident Rupee Account.
In case of NRI, if the shares sold were held on repatriation basis, the sale proceeds (net of taxes) may be credited to his NRE/ FCNR (B) accounts and if the shares sold were held on non-repatriation basis, the sale proceeds should be credited only to his NRO account subject to payment of taxes.
The sale proceeds of shares (net of taxes) sold by an erstwhile OCB may be remitted outside India directly if the shares were held on repatriation basis and if the shares sold were held on non-repatriation basis, the sale proceeds may be credited to its NRO (Current) Account subject to payment of taxes, except in the case of erstwhile OCBs whose accounts have been blocked by Reserve Bank.
All foreign investments are repatriable (net of applicable taxes) except in cases where the investment is made or held on non-repatriation basis or where the sectoral condition specifically mentions non-repatriation.
Further, dividends/ profits (net of applicable taxes), on foreign investments, being current income can be remitted outside India through an Authorised Dealer bank.
The pricing shall be as per the following guidelines:
the price worked out in accordance with the relevant SEBI guidelines in case of a listed Indian company;
the valuation of capital instruments done as per any internationally accepted pricing methodology for valuation on an arm’s length basis duly certified by a Chartered Accountant or a SEBI registered Merchant Banker, in case of an unlisted Indian Company.
Note: in case of convertible capital instruments, the price/conversion formula of the instrument should be determined upfront at the time of issue of the instrument. 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 instruments, in accordance with the extant FEMA regulations.
the price worked out in accordance with the relevant SEBI guidelines in case of a listed Indian company;
the valuation of capital instruments done as per any internationally accepted pricing methodology for valuation on an arm’s length basis duly certified by a Chartered Accountant or a SEBI registered Merchant Banker, in case of an unlisted Indian Company.
Note: The guiding principle would be that the person resident outside India is not guaranteed any assured exit price at the time of making such investment/ agreement and shall exit at the price prevailing at the time of exit.
These pricing guidelines shall not be applicable for investment by a person resident outside India on non-repatriation basis.
FDI compliant instruments, as applicable can be issued by Indian companies as follows:
Only NRIs are allowed to set up partnership/ proprietorship concerns in India on non-repatriation basis.
There are no restrictions under FEMA for investment in Rights shares issued at a discount by an Indian company, provided the rights shares so issued are being offered at the same price to residents and non-residents. The offer on right basis to the persons resident outside India shall be:
Yes, the same has been allowed vide the instructions and subject to compliance with the terms and conditions as mentioned in the AP (Dir. Series) Circular No 57 dated May 2, 2011 and A.P. (DIR Series) Circular No.141 dated June 6, 2014.
The following persons can acquire FDI compliant instruments on the stock exchanges:
Non-Residents permitted to acquire shares under the scheme can use following modes for payment of shares:
In case of transfer of shares between a resident buyer and a non-resident seller or vice-versa, not more than twenty five per cent of the total consideration can be paid by the buyer on a deferred basis within a period not exceeding eighteen months from the date of the transfer agreement. The amount deferred can also be either in the form of an indemnity or an Escrow. In all cases the pricing guidelines should be complied with.
Downstream investment is investment by one Indian company in another Indian company. If the investor company is not owned and not controlled by resident Indian citizens or owned or controlled by persons resident outside India then such investment shall be “Indirect Foreign Investment” for the investee company.
The concept ‘direct foreign investment’ means foreign investment received by an Indian company from a person resident outside India in terms of Schedules 1, 2, 2A, 3, 6, 8 and 10 of the Notification No. FEMA.20/2000-RB dated May 3, 2000, as amended from time to time.
This investment shall not be considered as indirect foreign investment for the investee company.
Downstream investment made in accordance with the guidelines in existence prior to February 13, 2009 would not require any modification to conform to these regulations. All other investments, after the said date, would come under the ambit of these regulations. Downstream investments made between February 13, 2009 and June 21, 2013 which is not in conformity with these regulations should have been intimated to the Reserve Bank by October 3, 2013 for treating such cases as compliant with these regulations.
Investment by FPI registered in accordance with SEBI guidelines including deemed RFPI [erstwhile FII) is permitted. Investment by individual FPIs should be less than 10 per cent of the paid up capital of the Indian company on a fully diluted basis. The aggregate investment by FPIs should not exceed 24 per cent of the paid up capital of an Indian Company on a fully diluted basis. The aggregate limit of 24 percent can be increased by the Indian company concerned up to the sectoral cap/ statutory ceiling, as applicable, with the approval of its Board of Directors and its General Body through a resolution and a special resolution, respectively.
Non- Resident Indian (NRIs) can purchase or sell FDI compliant instruments of Indian companies on the Stock Exchanges under the Portfolio Investment Scheme. For this purpose, the NRI has to apply to a designated branch of a bank, which deals in Portfolio Investment. All sale/ purchase transactions are to be routed through the designated branch.
An NRI can purchase shares up to 5 per cent of the paid up capital of an Indian company on a fully diluted basis. All NRIs taken together cannot purchase more than 10 per cent of the paid up value of the company. The aggregate limit of 10 percent can be increased by the Indian company concerned up to 24 percent, with the approval of its Board of Directors and its General Body through a resolution and a special resolution, respectively.
Foreign Portfolio Investors (FPIs), Non-Resident Indians (NRIs), Foreign Central Banks, Multilateral Development Bank, Long term investors like Sovereign Wealth Funds (SWFs), Multilateral Agencies, Endowment Funds, Insurance Funds, Pension Funds which are registered with SEBI Long Term Investors may invest in other securities as specified in Schedule 5 to Notification No FEMA 20.
A SEBI registered Foreign Venture Capital Investor may purchase
An FVCI may
An FVCI can invest in an Indian company engaged in
The amount of consideration for all investment by an FVCI has to be made through inward remittance from abroad through banking channels or out of funds held in a foreign currency account and/ or a Special Non-Resident Rupee (SNRR) account maintained by the FVCI with an AD bank in India. The foreign currency account and SNRR account shall be used only and exclusively for transactions under the relevant Schedule.
The sale/ maturity proceeds (net of taxes) of the securities may be remitted outside India or credited to the foreign currency account or a Special Non-resident Rupee Account of the FVCI maintained.
Investment Vehicle is an entity registered and regulated under relevant regulations framed by SEBI or any other authority designated for the purpose and shall include Real Estate Investment Trusts (REITs) governed by the SEBI (REITs) Regulations, 2014, Infrastructure Investment Trusts (InvIts) governed by the SEBI (InvIts) Regulations, 2014 and Alternative Investment Funds (AIFs) governed by the SEBI (AIFs) Regulations, 2012.
Any person resident outside India may invest in units of Investment Vehicles subject to the conditions laid down in Schedule 11 to Notification No FEMA 20.
A person resident outside India who has acquired or purchased units of an investment vehicle may sell or transfer in any manner or redeem the units as per regulations framed by SEBI or directions issued by the Reserve Bank.
Units may be issued against swap of capital instruments of a Special Purpose Vehicle (SPV) proposed to be acquired by such Investment Vehicle.
The consideration for such investment shall be made by an inward remittance through banking channels or swap of shares of a Special Purpose Vehicle or out of funds held in NRE or FCNR (B) account maintained by the investor, if eligible to maintain the same.
The sale/ maturity proceeds (net of taxes) of the units may be remitted outside India or may be credited to the NRE or FCNR (B) account, as the case may be.
Investment made by an Investment Vehicle into an Indian company or an LLP will be indirect foreign investment for the investee company or the LLP, as the case may be, if either the Sponsor or the Manager or the Investment Manager (i) is not owned and not controlled by resident Indian citizens or (ii) is owned or controlled by persons resident outside India. The extent of investment by persons resident outside India in the corpus of the Investment Vehicle will not be a factor to determine as to whether downstream investment of the Investment Vehicle concerned is indirect foreign investment or not.
An Alternative Investment Fund Category III with foreign investment shall make portfolio investment in only those securities or instruments in which an FPI is allowed to invest under the Act, rules or regulations made thereunder.
The reporting requirements are laid down in the Master Direction on Reporting under Foreign Exchange Management Act, 1999.
Investments can be made by an entity residing outside India in the form of equity shares, compulsory and mandatory convertible debentures/fully, compulsorily and mandatorily convertible preference shares of an Indian company through two routes- the Automatic route and the Government route.
AUTOMATIC ROUTE: Under this route, the non-resident investor or the Indian company does not require any prior approval from the Government of India for investments in the country. That means foreign direct investment opportunities can be met without any preliminary approval from the government.
GOVERNMENT ROUTE: Under this route, an approval from the Government of India is required before making an investment. Proposals for foreign investments coming under the Government route are considered by respective Administrative Ministry Department. Here, the process of foreign investments for an Indian company must get approval from the government and different cabinets.
An Indian firm looking for investment in India can get investment through two routes- the Automatic route and Government route. Under the automatic route, no prior approval is required by the government of India. However, under the government route for approval, a prior approval is mandatory.
An Indian company can get investments from foreign countries via through routes- the Automatic route and the Government route. A prior approval from the government is not required under the automatic route. However, a prior approval is required from the GOI under the government route for approval.
As per the new FDI policy, India further opened doors for foreign direct investment, easing the strict norms of local sourcing for single-brand retail. It also allowed 100 per cent FDI in commercial coal mining and liberalized FDI in multi-brand retail also.
FDI in India can happen through two routes- the automatic route, where no prior approval from the government is needed and the government route, where a prior approval from the government is needed.
Foreign direct investment norms have recently been revised by the government of India across several sectors including digital media, single and multi-brand retail, contract manufacturing, and aviation.
The DIPP monitors the industrial growth of the country and other industries coming under its jurisdiction. It is also responsible for the formulation of policies relating to Intellectual Property Rights in the field of Patents, Trademarks, Industrial design and Geographical Indications of Goods and administration of regulations.
The Department of Industrial Policy and Promotion (DIPP) help foreign investors facing problems in the implementation of their applications through Foreign Investment Implementation Authority. In June 2017, the DIPP prepared the Standard Operating Procedure (SOP) in order to process Foreign Direct Investment (FDI) in sectors and activities that require a prior government approval.
The current Minister is Piyush Goyal while the top bureaucrat is Secretary Guruprasad Mohapatra. How do I get a DIPP certificate?
You will need to register with the DIPP in order to get certified.
India is a vast country with ample of opportunities spread across different fields- from digital media to construction and information technology.
To get foreign finding for non-profit organizations, you can contact us. We will help connect you with the right investor for your noble cause.
Foreign contribution regulation Act 1976 or FCRA is a law of government of India which regulates receipt of foreign contributions or aid from outside India to India territories. This is essential to ensure that such aid does not affect political or any other situation in India.
FCRA is needed for the regulation of foreign contribution and foreign hospitality. It is needed for fairness of election for legislature, harmony and public interest.
Typically, a soft loan is made in terms that are favorable to the borrower. Foreign Soft Loan for businesses or overseas borrowings refer to commercial loans given in the form of bank loans, buyers’ credit, suppliers’ credit, and shareholder’s loans.
Hard loans are generally awarded by a private individual or investor, and its terms and interest rate may be more stringent than those of a bank, while soft loans are made in terms that are more beneficial for the borrower.
For queries relation to foreign direct investment, including hard and soft loans, you can contact us. You can think of us as soft loan facilitators in India.
India is a booming economy and the largest democracy. The opportunities it has to is widespread across different sectors- from information technology to construction.
Foreign direct investment equity inflows are the investment made by a foreign entity into the business of another country. This type of investment is characterized by a notion of control in the business.
Foreign equity is the investment made by an entity living outside the country where the investment is being made.
Foreign direct investment or FDI is an investment made by a foreign entity (an individual or a firm) into the business of another country. Now, FDI is not merely the transfer of monetary funds; it is a form of controlling ownership and thus is distinguished by foreign portfolio investment by a notion of direct control.
The External Commercial Borrowings or ECB’s is the financial instrument that facilitates access to foreign currencies from foreign or non-resident sources by Indian corporations.
External Commercial Borrowings is basically a loan from a non-resident entity to invest in the commercial activities of the domestic country. There are two routes for ECB- the automatic route where no prior approval is needed by the GOI and the government route where an approval is needed.
External Commercial Borrowings are any kind of funding other than Equity. If the foreign money is used to finance the Equity Capital, it would be termed as Foreign Direct Investment.
Getting capital is fairly difficult for NGO’s and they often turn towards Donations, Government-funded campaigns, Charity, CSR, and Foreign Funding via a foreign funding advisor for an Indian NGO.