RBI Pricing Guidelines for Transfer of Shares to Non-Resident

Narendra Kumar

04 Jun, 2019

Brief:

Merger & Acquisition is the very common word on today’s corporate day in day out function where a number of companies are merged and demerged as well. In each transaction, it is always been a great deal to get the share valued on right term. Not on Merger & Acquisition only, the point of pricing the share or valuation of share is a critical task even when two people sit together to Transfer Pricing their respective share to the counterpart. A further number of methods, technique, and regulation is set aside, to get a proper valuation of shares irrespective of the company is listed or not to achieve a fair market value of a share to effect the transfer transaction.

The focused part concern on this write up is RBI pricing regulation/guidelines for transfer of share. Any corporate registered on Companies Act, 2013/1956 can have pricing of its share based on listed or unlisted scenario calculated with the number of finance method explained in the market to reflect the fair market price of the share. However, when the entity registered in Companies Act, 2013/1956 does have a regulatory body like RBI/SEBI/Insurance and so on. When in and above incorporating act, regulatory body come in the face then the regulatory rules, laws, direction, and circular has to be compiled to perform or operate in India.

Regulatory Guidelines for Pricing of Shares:

The Master Direction issued on Foreign Direct Investment Compliance Checklist dated 4^th Jan 2018 updated to 12^th Jan 2018 states the pricing regulation/guidelines for various form/number of ways to price the capital instrument. According to Para 4 of captioned Guidelines, Capital instruments are equity shares, debentures, preference shares and share warrants issued by the Indian Company. Under para 8 of guidelines, the complete procedure and rules for the various form of capital instrument under different circumstances are explained to price the shares.

Reviewing the guidelines, it can be summarized as whenever the capital instrument of an Indian Company is issued then pricing should not be less than the price worked out in accordance with SEBI guidelines for listed company or in case of company going through a delisting process (process where the listed capital instrument are deleted from list of listed securities) as per SEBI (Delisting of Equity Shares) Regulations, 2009 OR the valuation of capital instrument done as per any internationally accepted pricing methodology for valuation of on an arm’s length basis duly certified by a Chartered Accountant (CA) or a SEBI registered Merchant Banker or a Practicing Cost Accountant (ICWA), in case of an unlisted Indian Company.

In case of a convertible capital instrument, price/conversion formula of the instruments is required to determine upfront at the time of issue of instrument and price of conversion should not be lower than fair value worked out, at the time of issuance of capital instruments irrespective of its nature, in accordance with extant FEMA Regulation.

In case of a swap of the capital instrument, irrespective of amount, valuation will have to be made by Merchant Banker Registered with SEBI or an Investment Banker outside India registered with appropriate regulatory authority in the host country.

Where shares in an Indian Company are issued to a person resident outside India in compliance with the provision of the companies act, 2013 by way of subscription to Memorandum of Association, such investment shall be valued at face value subject to entry route and sectoral caps.

As of Convertible capital instrument in case of Share Warrants, price/conversion formula shall be determined upfront and price at the time of conversion should not, in any case, be lower than the fair market value worked out, at the time of issuance of such warrants-type of capital instruments.

Non-Applicability of Pricing Guidelines:

The pricing guidelines given on Master Direction-Foreign Direct Investment will not apply for investment in capital instruments by a person resident outside India on the non-repatriation basis i.e. investment in Rupee can’t convert in any foreign currency Account. Further, the pricing guidelines will not be applicable to any transfer by way of sale done in accordance with SEBI regulations, i.e. regulating authority on the pricing of shares. However, Chartered Accountant’s Certificate to the effect that relevant SEBI Regulations/guidelines have been complied with has to be attached to the form FC-TRS filed with AD Bank.

On overall remarks of pricing guidelines on Shares, either on subscription or acquisition though partly or fully paid up or convertible or not the shares price need to be valued as per RBI pricing guidelines as amended time to time. Moreover, the transfer of shares to be valued from SEBI guidelines in case of listed Companies and in other case either Chartered Accountant or Merchant Banking can do a valuation on arm length basis followed by an internationally accepted technique. At any cost, the share needs to be valued before issue/transfer to any person resident outside India to compiled the regulation on extant FEMA and FDI policy.