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Our specialist team of experienced professionals work in coordination with Customers, Chartered Accountants, Company Secretaries, Law Firms to ensure seamless flow of documentation and funds

Exclusive Relationship Team to handle FDI/ODI/ECB
Dedicated Experts to handle pre and post transaction
Pre-verification of documents for timely submission of regulatory returns
Simplified documentation for quick processing
Foreign Direct
Investment
Overseas Direct
Investment
External Commercial
Borrowings

“FDI” or “Foreign Direct Investment” means investment through equity instruments by a person resident outside India in an unlisted Indian company; or in ten per cent or more of the post issue paid-up equity capital on a fully diluted basis of a listed Indian company.

How FDI works in India:

Example: A US based technology company XYZ INC invests and acquires majority stake in an Indian company ABC Pvt. Ltd. to boost its research & development. Some of the benefits which encourages the foreign investors to involve in FDI are Market diversification, local expertise, lower labour costs, Tax incentives, etc.

In addition to the foreign investors, Foreign Direct Investment (FDI) is a major driver of economic growth and an important source of non-debt finance for the economic development of the country.

Click here to know more about

  1. Reporting requirements under FDI
  2. Steps for filing in on FIRMS Portal
  3. Reporting requirements for each type of filing like FC-GPR, FC-TRS, LLP, DRR etc.

FAQ

What is the difference between the ’Foreign Direct Investment’ and ‘Foreign Portfolio Investment’?

The percentage stake being held by the foreign investor. “foreign portfolio investment” means any investment made by a person resident outside India through equity instruments where such investment is less than ten percent of the post issue paid-up share capital on a fully diluted basis of a listed Indian company or less than ten percent of the paid-up value of each series of equity instrument of a listed Indian company;

What are sectors prohibited for receiving FDI?

Investment by a person resident outside India is prohibited in the following sectors:

  • Lottery Business including Government/ private lottery, online lotteries.
  • 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.
What are the documents to be attached at the time of Entity User and Business User registration?

Entity User:

  • The authorisation letter as per the Entity Master User Manual. (https://firms.rbi.org.in/firms/)
  • PAN Card of the Entity User
  • Company declaration by mentioning the reasons for not being able to complete the entity user registration process during the initial window from Jun 28 to Jul 20, 2018

Business User:

  • The authorisation letter as per the Firms User Manual. (https://firms.rbi.org.in/firms/)
  • PAN Card of the Business User
What is the process for rectifying/modifying the Entity Master details?

To modify the existing details on Entity Master, a request has to be made by sending an e-mail to fedsupport@rbi.org.in and helpfirms@rbi.org.in by attaching a scan copy of the request letter from an authorised representative of the company. The e-mail should contain necessary details of the company and the changes needed in the below format:

  • User ID:
  • Company Identification Number (CIN)/ Limited Liability Partnership (LLP) Number:
  • Registered e-mail ID:
  • Issue description (reasons for the change):
  • Changes needed to be done:
Do I need to submit Advance Remittance Form (ARF) before filing FC-GPR on SMF?

Upon SMF implementation, the two-step reporting procedure of FDI i.e. submission of ARF and FC-GPR separately has been merged into a single revised FC-GPR. So, FC-GPR can be filed directly on SMF without any submission of ARF.

What is the permissible limit for excess/shortfall of the funds due to exchange rate fluctuations?

In case excess/shortfall of the funds is due to foreign exchange fluctuations, the permissible amount of deviation is 0.5% of the total amount of consideration and up to maximum value of INR 10,000.

A Person Resident Outside India (PROI) is exercising an option which was issued to him/her when he/she was a person resident in India. Will it be on repatriation or non-repatriation basis?

The option exercised by such a PROI which was issued to him/her when he/she was a resident in India will be on non-repatriation basis.

Whose responsibility is to file Form FC-TRS?

The onus of reporting shall be on the resident transferor/transferee or the person resident outside India holding equity instruments on a non-repatriable basis, as the case may be.

ODI means investments, by way of contribution to the capital or Subscription to the Memorandum of a foreign entity or by way of Purchase of existing shares of a foreign entity either by market purchase or private placement or through stock exchange but does not include Portfolio Investment.

How ODI works in India:

Example 1: Indian Company ABC Pvt. Ltd. engaged in Smart Phone manufacturing business sets up an overseas company to expand its operations and leverage on the cheap labour costs of the host country.

Example 2: Mr. X, a resident individual finds potential in an overseas company and wants to invest and contribute to the growth of the company.

Any Indian Party which intends to make an overseas direct investment shall approach a designated Authorised Dealer for making the remittance/investment along with duly filled form ODI Part I along with the supporting documents like Board Resolution, Statutory Auditor Certificate, etc. Once the AD Bank scrutinises and approves the documents as per the regulatory guidelines, the remittance/investment will be processed. A Unique Identification Number (UIN) will be generated for the particular JV/WOS before the first remittance, and the same UIN shall be used for further investments/remittances in the JV/WOS.

Click here to know more about

  1. What is considered as Indian party
  2. Eligible limits for financial commitment and Liberalized Remittance Scheme

FAQ

Whom should I approach for making a direct investment in an overseas entity under automatic route and what is the procedure?

Any Indian Party which intends to make an overseas direct investment shall approach a designated Authorised Dealer like ICICI Bank for making the remittance/investment along with duly filled form ODI Part I along with the supporting documents like Board Resolution, Statutory Auditor Certificate, etc. Once the AD Bank scrutinises and approves the documents as per the regulatory guidelines, the remittance/investment will be processed.

What is Financial Commitment, and the maximum permissible amount under automatic route??

Financial Commitment' comprises of the direct investment made by the Indian party through equity, loan, 100 percent of the amount of guarantees and 50 percent of the performance guarantees issued by an Indian Party to or on behalf of its overseas Joint Venture Company or Wholly Owned Subsidiary. The eligible limit for the financial commitment by an Indian Party is 400% of its net worth (the maximum permissible amount is USD 1 billion per financial year) as per the latest audited balance sheet

What are the sources of funding for the overseas investments which are permitted under automatic route?

Any of the below sources can fund the overseas investments in JV/WOS:

  • Drawal of foreign exchange from an Authorised Dealer bank in India
  • Balances held in Exchange Earner's Foreign Currency (EEFC) Account of the Indian Party
  • Proceeds of Foreign Currency Convertible Bonds (FCCBs)/External Commercial Borrowings (ECBs)
  • Swap of shares
  • In exchange of American Depository Receipts/Global Depository Receipts (ADRs/GDRs) issued as per the scheme for the issue of Foreign Currency Convertible Bonds and Ordinary Shares Scheme, 1993, and the guidelines issued thereunder from time to time by the Government of India
  • Proceeds of foreign currency funds raised by ADR/GDR issues
  • Capitalisation of exports and dues from foreign entity
Can an Indian Party make investments through different Authorised Dealer Banks for the same overseas Joint Venture/ Wholly Owned Subsidiary (JV/WOS)?

All the transactions of a particular overseas JV/WOS shall be routed through a single Authorised Dealer Bank. In case the Indian Party decides to change the existing Authorised Dealer Bank, an NOC should be obtained from the bank for the same and send an application to Reserve Bank by way of a letter.

What are the reporting requirements and other obligations for an Indian Party post remittance/investment?
  • Indian Party has to submit the Share Certificates or any other documentary evidence for the investment to the designated AD Bank within six months of the remittance/investment.
  • An Annual Performance Report Overseas Direct Investment (ODI Part II) in respect of each JV or WOS has to be submitted by the Indian Party to the designated AD Bank before the stipulated timeline every year.
  • Indian Party is obligated to repatriate all dues receivable from the foreign entity, such as dividend, technical fees, royalty, etc., within 60 days of its falling due, or similar further period as the Reserve Bank may permit.
  • Indian Party has to report the changes made concerning JV/WOS like diversification of its activities/setting up of step down subsidiaries/change in the shareholding pattern within 30 days of the approval of the decisions by the competent authority concerned of such JV/WOS in terms of the local laws of the host country.
  • The sale proceeds in case of disinvestment shall be repatriated to India within 90 days from the date of sale of the shares/securities and reporting needs to be done to Reserve Bank through designated AD Bank within 120 days from the date of disinvestment.
What is Annual Performance Report (APR) and timeline for filing of APR?

An Indian Party (IP)/Resident Individual (RI) that has made an Overseas Direct Investment (ODI) is required to submit an Annual Performance Report (APR) in Form ODI Part II to the AD Bank with respect to each Joint Venture/Wholly Owned Subsidiary outside India before 31st Dec for every financial year.

Who is responsible for filing APR in case multiple IPs/RIs have invested in the same overseas JV/WOS?

In case multiple IPs/RIs have invested in same overseas JV/WOS, the responsibility to submit APR lies with the IP/RI having a maximum stake in the JV/WOS. Alternatively, the IPs/RIs may mutually agree to assign the obligation for APR submission to a designated entity that may acknowledge its obligation and furnish an appropriate undertaking to the AD bank.

What is the primary document to be submitted along with APR?

A copy of audited financial statements of the overseas JV/WOS (on a standalone basis) is to be filed along with the APR.

Is it required to file APR in a host country where the law does not compulsorily require book auditing of accounts of JV/WOS?

The APR can be submitted by the Indian Party based on the un-audited annual accounts of the JV/WOS provided**:

(i) The Statutory Auditors of the Indian Party certify that law of the host country does not mandatorily require auditing of the books of accounts of JV/WOS and the figures in the APR are as per the un-audited accounts of the overseas JV/WOS; and

(ii) That the un-audited annual accounts of the JV/WOS have been adopted and ratified by the Board of the Indian Party.

(**The above exemption from filing the APR based on the unaudited balance sheet will not be available in respect of JV/WOS in a country/jurisdiction which is either under the observation of the Financial Action Task Force (FATF) or in respect of which enhanced due diligence is recommended by FATF or any other country/jurisdiction as prescribed by Reserve Bank of India.)

External Commercial Borrowings or ECB are commercial loans raised by eligible resident entities from recognized non-resident entities and should conform to parameters such as minimum maturity, permitted and non-permitted end-uses, maximum all-in-cost ceiling, etc.

How ECB works in India:

Resident entities can raise ECB in INR or any freely convertible Foreign Currency. ECBs can be raised under the automatic route as well as the approval route, under the ECB framework. Under Automatic Route, the AD Category-I Bank examines the case and gives the approval. Entities wanting to raise ECB under the automatic route may approach an AD Category-I Bank like ICICI Bank with their proposal along with a duly filled Form ECB.

Under Approval Route, prospective borrowers send in their requests to the RBI through their AD Category-I Banks for examination.

Click here to know more about

  1. Eligible borrowers to raise ECBs
  2. Advantages of ECBs and its applicability for Startups

FAQ

What are the forms of External Commercial Borrowings (ECBs)?

Different types of ECBs are as follows:

  1. Loans including bank loans
  2. Securitised instruments (such as floating rate notes, fixed-rate bonds, and non-convertible, partially convertible or optionally convertible preference shares/debentures)
  3. Trade Credits beyond 3 years
  4. Foreign Currency Convertible Bonds (FCCBs)
  5. Financial Lease and
  6. Foreign Currency Exchangeable Bonds (FCEB)
What is the currency of borrowing in case of External Commercial Borrowings (ECBs)?

ECBs can be raised in Indian National Rupees (INR) or any other convertible currency. Any unit raising INR denominated ECB is not permitted to convert the liability of this ECB into liability of foreign currency in any manner or assume foreign currency risk in any way by entering into derivative contract or otherwise.

How is reporting of actual transactions to be done?

The borrowers are required to report actual ECB transactions, correctly and fully, through duly certified Form ECB 2 through AD Category-I bank to DSIM as per the periodicity specified by the RBI. The Form ECB 2 should reach DSIM within seven working days from the close of month to which it relates. Changes, if any, in ECB parameters should also be incorporated in Form ECB 2 suitably.

Who are the eligible borrowers under External Commercial Borrowings (ECBs) framework?

Recognised lender/investor who is a resident of Financial Action Task Force (FATF) compliant country is permitted to lend while raising ECB by Startup. However, foreign branches or subsidiaries of Indian banks and overseas entities in which Indian entities have made overseas direct investment as per the existing Overseas Direct Investment Policy would not be considered as recognised lenders under this framework. Any person/entity which already is a foreign investor in the Startup is also allowed to lend.

What is External Commercial Borrowing (ECB)-2 Return?

The borrowers are required to report the actual ECB transactions by Form ECB 2 Return through the AD Category I Bank monthly within seven working days from the close of month to which it relates. Changes, if any, in ECB parameters should also be incorporated in Form ECB 2 Return.


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