Foreign Direct Investments
Malay Damania
M.V. Damania & Co
Chartered Accountants
M. V. Damania & Co
Chartered Accountants
1
Foreign Investment in India
(Schematic Representation)
Foreign Investment
Investments on
A non –
repatriable
NRIs, PIO
Foreign Portfolio
Investments
FIIs
NRIs, PIO
Foreign Venture
Capital Investment
SEBI regd
FVCIs
VCF, IVCUs
M. V. Damania & Co
Chartered Accountants
Other Investments
(G-Sec, NCDs, Etc)
FIIs
NRIs, PIO
Foreign Direct
Investments
Automatic
Route
Government
Route
Persons Resident
Outside India
2
FDI inflows in India
FDI Inflows in India (INR billions)
1230
1231
31.5%
987
885
707
171
FY05
246
FY06
FY07
FY08
FY09
FY10
FY11
billion
M. V. Damania & Co
Chartered Accountants
3
Country-wise FDI Inflows in India
Ranks
Country
% of total
inflows
1
Mauritius
36%
2
Singapore
9%
3
Japan
8%
4
U.S.
6%
5
Netherlands
6%
6
Others
35%
Total FDI Inflows
100%
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Chartered Accountants
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Sector-wise FDI
Ranks
Sectors
% of
total
inflows
1
Services
18%
2
Automobiles
8%
3
Telecommunication
7%
4
Power
6%
6%
5
Housing & Real Estate
6%
6
Others
55%
Total FDI Inflows
100%
Services
Automobiles
Telecommunications
Power
Housing & Real Estate
Others
Sectorwise FDI Inflow in India
18%
8%
55%
M. V. Damania & Co
Chartered Accountants
7%
6%
5
Definitions of FDI
 Some key definitions:

‘Capital’ – equity shares; fully, compulsory & mandatory convertible
preference shares & debentures. Instruments like warrants, partly paid shares
cannot be issued to person resident outside India.

‘Current Account Transactions’ – Other than Capital Account transactions.
Does not mean “Revenue”.

‘Capital Account Transaction’ – alters assets or liabilities, including contingent
liabilities. Also refer Sec. 6(3).
- Foreign Trade
- Short Term banking facility
- Income on Investments
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Chartered Accountants
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Definitions of FDI

‘FDI’ – Investment by non-resident entity/person resident outside India in the
capital of the Indian Company.

‘NRI’ – Individual resident outside India who is a citizen of India or person of
Indian origin.

‘PIO’ – citizen of any country other than Pakistan and Bangladesh, if
- he at any time held Indian Passport
- He or either of his parents or any of his grand parents was citizen of India or
- Is a spouse of Indian citizen or person referred to in above.
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Chartered Accountants
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Definitions of FDI
 Person Resident in India –
• Rules for Person Coming to India:
More than 182 days in India
in preceding year?
Yes
NRI if purpose is other than
Employment, Business,
Vocation or intention to stay
for uncertain period.
No
NRI
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Definitions of FDI
• Rules for person leaving India:
More than 182 days in India
in preceding year?
Yes
No
Still NRI, if purpose is Employment, Business,
Vocation or intention to stay outside India for
uncertain period.
NRI
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Origin of Investment
 A non-resident entity other than citizen of Pakistan or an entity incorporated in
Pakistan.
 A citizen of Bangladesh or an entity incorporated in Bangladesh can invest only
under Government route.
 NRIs resident in Nepal/Bhutan can invest on repatriable basis only if the inward
remittance is in free foreign exchange.
 FII may invest in capital of Indian company. 10% is individual limit and 24%
aggregate limit for FII investment.
 No person other than registered FII/NRI can invest or trade in Indian Stock
Exchange ie. through brokers
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Chartered Accountants
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Types of Securities
 Equity shares
 Fully, compulsory, mandatory convertible preference shares and debentures.
 Other types of preference shares/debentures are considered as debt.
 Inward remittance on issue of Depository Receipts (DRs) and Foreign Currency
Convertible Bonds (FCCBs) are treated as FDI.
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Eligibility – Indian Companies
 Indian Companies – Can issue capital against FDI.
 Partnership Firms/Proprietor –
o NRI or PIO
Non-repatriable basis if;
a) Amount is invested by inward remittance or out of
NRE/FCNR/NRO account.
b) Not engaged in agriculture, plantation, real estate business or
print media.
Repatriable basis only with prior permission of RBI.
o Other than NRI/PIO only with prior permission of RBI.
 Trusts – FDI in Trust other than Venture Capital Funds is not permitted.
 Any other entity – Not permitted.
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Routes of Investment
Routes of Investment
Prohibited
Approval
RBI
Auto
FIPB
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Prohibited Sectors
•
•
•
•
•
•
•
•
•
•
•
Retail Trading (except single brand product retailing)
Atomic Energy
Lottery
Gambling and Betting
Chit fund
Nidhi Company
Trading in Transferable Development Right (TDR)
Real Estate Business or Construction of Farm House
Activities/Sectors not opened to private sector investment
Agriculture and plantations (excepts selected activities)
Manufacture of Cigars, cheroots, tobacco products etc.
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Sectoral Cap
 Manufacturing:
• Industrial Undertaking not a micro or small scale enterprise (MSEs)
manufactures items reserved for MSE sector would require Government
approval if the foreign Investment is more than 24% in equity capital.
 Service Sector:
• Advertising – 100% FDI allowed under automatic route.
• Films – 100% FDI allowed in Film industry including film financing,
production, distribution, exhibition, marketing and associated activities.
• Cable Network: ermitted up to 49% under Government route.
 Business Service:
• 100% FDI under automatic route for Data processing, software
development, computer consultancy, business management services,
Market research, testing and analysis.
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Development of Township:


Minimum Area
o
Service housing plots –10 hectares
o
Construction-development projects – built-up area of 50,000 sq. mtrs.
Investments:
o
For WOS – US$ 10 million.
o
For JV with Indian Company – US$ 5 million.
o
Funds have to be brought in within 6 months of commencement of business
o
Original investment cannot be repatriated before 3 years from completion of
minimum capitalisation.
Above terms do not apply for investment by NRI. They also do not apply for
development of SEZ.
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Chartered Accountants
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Development of Township:

Other Terms:
o
At least 50% of the project must be completed within 5 years from obtaining
all statutory compliances.
o
Company is not permitted to sell undeveloped plots.
o
Company must obtain all necessary approvals, plans, licenses under
applicable rules/bye-laws/regulations.
o
FDI is not allowed in Real Estate Business.
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Chartered Accountants
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Sectoral Cap

Health and Medical Services – 100% FDI allowed under automatic route.

Hotel and Tourism Industry – 100% FDI allowed under automatic route.
• Hotel includes restaurants and beach resorts.
• Tourism Industry includes:
o
Travel agencies, Tour operators, tourist transporters

Convention/seminar units and organisations.

Investment Advisory services, Financial Consultancy, Credit Rating agencies –
100% FDI allowed under automatic route.
M. V. Damania & Co
Chartered Accountants
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Cash & Carry Wholesale Trading




WT is permitted amongst same group companies. However such trade should not
exceed 25% of total turnover. Such purchase by the group companies should be
for their internal use only.
WT can be undertaken as per normal business practice, including extending
normal credit facilities.
WT cannot open retail shops to sell to consumers directly.
Trading for Exports – 100% FDI allowed under automatic route.
M. V. Damania & Co
Chartered Accountants
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Single Brand Product Retailing

FDI up to 51% in retail trade of ‘single brand’ products is allowed subject to:
o
Product should be of ‘Single Brand’ only.
o
Product should be sold under the same brand internationally.
o
Will cover only those products which are branded during manufacturing.
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Chartered Accountants
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RBI Approvals
 Transactions where RBI prior approval is required.






Indian Company engaged in Financial sector
Attracts SEBI takeover code.
Activity is outside automatic route
Transaction price falls outside the pricing guidelines.
When non resident buyer proposes deferment of payment.
Companies engaged in sectors falling under Govt. route.
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Entities
Entities
L.O
B.O.
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JV/WOS
PF/LLP
22
Liaison Office (L.O.)











A representative office of the foreign entity.
To explore and understand business and investment climate.
Communication channel between parent Company and Indian entities.
Parent Company with track record of 3 years and Networth of USD 50,000
Permitted activities - Represent parent/group Company in India.
- Promote export/import
- Promote technical/financial collaboration.
- Acts a communication channel
Not permitted to carry out any activity which is capable of generating income in
India.
Cannot buy immovable property
All the expenses to be borne by parent company.
A representative based in India.
RBI permission is necessary.
Annual Accounts to be filed with the Tax Authorities.
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Project Office (P.O.)
Foreign company has secured a contract from Indian Company to execute
project in India
 Conditions under automatic route:
•
Project is funded by inward remittance
•
Project is funded by bilateral or multilateral International Financing Agency
•
Project is approved by appropriate authority
•
Indian entity awarding the contract is granted by public financial
institution or a bank in India.
•
Corporate Tax at rate applicable to foreign LOS.

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Branch Office (B.O.)

To carry on same or substantially same activity as that of the parent Company.

Parent Company with track record of 5 years and Networth of USD 100,000.

Permitted activities •
•
•
•
•
•
•
Export/Import of goods
Professional/Consultancy services
Research work
Promote technical/financial collaboration
Act as buying/selling agent for parent Company
Services in IT or software development
Render technical support to products supplied by parent Company.
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Branch Office (B.O.)

Prohibited activities • Retail trading
• Accepting deposit
• Any activity other than expressly approved by RBI.

A representative based in India.

RBI permission is necessary.

Can acquire immovable property if it is necessary to carry out business activity
from there.

Profits are fully repatriable, after payment of tax.
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Wholly Owned Subsidiary (WOS)
or Joint Venture (JV)

A foreign Company is permitted to set up a WOS or a JV in India

“Automatic Route” or “Approval Route” - Based on some conditions and criteria.

Automatic Route: No permission required from Reserve Bank of India or
Government Authority

Approval Route: Specific permission from Reserve Bank of India or Government
Authority.

A Company can be formed with The Registrar of Companies (ROC)

Minimum of 2 shareholders and 2 directors.

Shareholders and directors need not be Indians.
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Wholly Owned Subsidiary (WOS)
or Joint Venture (JV)




Minimum Paid up share capital - INR 100,000.
Valuation of shares under Discounted Free Cash Flow (DCF) method by
Chartered Accountant.
Financial Projections and Forecast needs to be shared.
Can acquire immovable property if necessary to carry out business from there.
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ECB
Bonus – Rights – ESOP
 Indian Companies are granted general permission to convert ECB/Lumpsum
fee/Royalty into Equity subject to the regulations on activity of the Company, sectoral
cap and pricing guideline.
 Indian Companies can also issue bonus/rights shares to existing non-resident share
holders subject to adherence of sectoral cap.
 The price of the rights shares offered to non-resident shall not be lower than that
issued to resident shareholders.
 Issue of shares under ESOP:
 Listed Companies are allowed to issue shares under ESOP to its employees or
employees of its Joint Venture or WOS abroad who are resident outside India.
 The ESOP scheme should be in accordance with SEBI regulations.
 The Face value of shares so issued shall not exceed 5% of paid-up capital of the
Company.
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Reporting Requirement
 Reporting of Inflow:
 Within 30 days of date of receipt in Ann – 5
 Foreign Inward Remittance Certificate – FIRC
 KYC report on overseas investor in Ann – 6
 Reporting of issue of Shares:
 Form FC-GPR within 30 days of allotment of shares
 Part A of the form be submitted by the Company Management
 Annual Return to be submitted by 31st July every year.
 The form includes all foreign investments made into the company.
 Details of bonus/right shares of stock options to persons resident outside India.
 Issue of shares on conversion of ECB/Royalty/Lump sum fees etc.
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Reporting Requirement

Reporting of transfer of shares:


Form FC-TRS within 60 days of date of receipt of consideration.
Reporting on non-cash:

Full or Partial conversion of ECB into Equity share capital is allowed.

Form FC-GPR and Form ECB-2 has to be filed within 7 working days from the
close of the month.
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Chartered Accountants
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Repatriation

Repatriation of Dividend:

Current Account Transaction

Freely repatriable Net of Taxes or Dividend Distribution Tax

Repatriation of Interest:

Current Account Transaction

Freely repatriable Net of Taxes
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Chartered Accountants
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Violation




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

FDI – a Capital Account Transaction
RBI administers FEMA
Enforcement Director under Ministry of Finance takes up investigation in case
of contravention.
For any violation/contravention of any of the rules, regulations, notification,
press note, press release, circular, direction or order, the person is liable for a
penalty up to thrice the amount involved where the amount is quantifiable and
Rs. 2 Lakhs where the amount is not quantifiable.
Where the violation is continuing one, further penalty up to Rs. 5,000/- per day
In case of Company, every person who is in charge of the Company shall be
deemed to be guilty of contravention.
Any adjudicating authority, in addition to penalty, may also confiscate any
currency/security or property in respect of such contravention.
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Compounding Proceedings





Compounding Officer can either be from RBI or ED.
No contravention can be compounded unless the amount involved is
quantifiable.
Order shall be passed within 180 days from the date of receipt of application.
Speaking order
Compounding is generally accepted once in three years
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Question
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For any issue/ clarification,
please mail to consult@mvdco.com
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Chartered Accountants
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