AIF Registration

Regulatory Framework of Alternative Investment Fund (AIF) in India

Earlier there were only the conventional ways to invest in instruments like equities, bonds, real estate, FDs, etc. With the increase in high-net-worth individuals, the demand for unconventional financial instruments arose. The Securities Exchange Board of India (SEBI) came up with Alternate Investment Fund (AIF) which accumulates money from wealthy private investors. AIF is an apt option for wealthy investors who want to diversify their portfolios.

The money accumulated by AIF is invested as per the investment policy of the AIF. AIF in India is governed by SEBI (Alternative Investment Fund) Regulation, 2012. As per this regulation, an AIF can be set up as a Company, trust, LLP or body corporate. AIF has witnessed rapid growth in India and the most significant portion among AIF is Category II AIF.

Development of AIF in India

Prior to the introduction of Venture Capital and Private Equity funds, investors primarily relied upon public offerings, private placements and raise capital from lendings by financial institutions. Venture capital funds manage the money of investors who invest in personal equity shares in start-ups and small-to-medium-sized enterprises with growth potential but with high-risk and high-return. The enactment of SEBI (Venture Capital Funds) Regulations, 1996^[1] provided the much-needed risk capital and entrepreneur’s mentorship, improved stability and quality of companies in the capital markets. Thereafter, the SEBI (AIF) Regulations, 2012 was introduced, which loosened the rules for foreign investments by way of AIF and Venture Capital Funds (VCF). As per the guidelines on overseas investment, a prospective AIF or VCF must obtain a No objection certificate (NOC) from SEBI and allocate the proposed amount of investment from the maximum limit of USD 1,500,000,000 for every AIF and VCF. For better understanding, let’s discuss the development of the regulatory framework of AIF in a tabular form:

Year	Event
2011	A consultation paper for AIF Regulations was introduced.
2012	The SEBI (AIF) Regulations, 2012 were issued.
2013	Introduction of rules on Angel Funds.
2014	Amendment in AIF regulation such as the approval of 75% of the investor’s exit options to investors dissenting for an increase in fees or expenses. In addition, some relaxations were granted to the Angel Fund.
2017	Introduction of online registration platform for AIF.
2018	Introduction of guidelines for AIF in International Financial Service Centres (IFSCs). In addition to this, further relaxation was granted to Angel Funds.

Structures of AIF in India

As per the SEBI (AIF) Regulations, 2012, an AIF can be established as a Company, Trust, LLP or Body Corporate. Among these structures, Trust is the most preferred mode of AIF. So let’s understand the major aspects of an AIF setup as Trust. The parties involved in an AIF set up as a Trust is the Fund itself, the Trustee, the Sponsor and the Investment Manager. Some of the documents executed by an AIF set up as a Trust are as follows:

1. An Indenture of Trust is an agreement between the bond issuer and trustee who represents the bond holder’s interest.
2. The Investment Management Agreement is an agreement for delegation of authority for the management of the fund and payment of management fees to the Investment manager.
3. The Contribution Agreement is an agreement with the investors agreeing to invest in funds from time to time when investment opportunities arise.
4. A Private Placement Memorandum (PPM) is an agreement that provides the key terms of AIF, strategies to be used and details of the management team.

Pre-requisites for the establishment of an AIF in India

There are certain prerequisites prescribed under the SEBI (AIF) Regulation, 2012 for the establishment of an AIF. These pre-requisites have been discussed below:

• Registration of AIF

A prospective investor has to register with SEBI before making investments. It can seek registration under different categories of AIF such as:

1. Category I AIF invests in Start-ups, SMEs and socially and economically viable projects.
2. Category II AIF invests in Equity and Debt Securities.
3. Category III AIF invests in short-term returns achieved using diverse trading strategies.

While applying for the registration of an AIF in India, the following registration fee has to be paid by the AIF:

Particulars	Amount
Application Fee	Rs. 1,00,000/-
Category I AIF except for Angel Fund	Rs. 5,00,000/-
Category II AIF except for Angel Fund	Rs. 10,00,000/-
Category III AIF except for Angel Fund	Rs. 15,00,000/-
Scheme for AIF except for Angel fund	Rs. 1,00,000/-
Re-registration fee	Rs. 1,00,000/-
Registration fee for Angel Funds	Rs. 2,00,000/-

• Qualified Investors

The qualified investors as per the SEBI (AIF) Regulations, 2012 can be Resident Indians, non-resident Indians and foreign investors. In addition to this, AIF can have joint investors by making an investment of at least Rs. 1 crore. Joint investors can have a maximum of two participants. Joint investors can be:

1. An investor, along with his or her spouse.
2. An investor, along with his or her parent.
3. An investor, along with his or her child.

In the case of a joint investor, each investor has to contribute to the AIF. An additional Rs. 1 crore shall apply for an additional investor. 

• Minimum Corpus

Corpus means the amount committed to the fund by the investor by way of a written contract or any other document on a specified date. A minimum corpus of Rs. 20 crores is required as per the SEBI (AIF) Regulations. However, the minimum prescribed corpus for Angel Funds or Social Impact Funds is Rs. 5 crores. The minimum corpus set forth must be met at the time when the first close is declared.

• Minimum Investment

The minimum investment amount prescribed under the SEBI (AIF) Regulations, 2012 is Rs. 1 crore. An exception to the minimum investment prescribed arises in the case of an employee or director of the AIF or the manager of an AIF where the minimum investment is Rs. 25 lakh. Further, in the case of Angel fund the minimum investment amount is Rs. 25 lakh and the maximum is Rs. 10 crores. 

• Maximum Number of Investors

As per the SEBI (AIF) Regulations of 2012, the maximum number of investors for an AIF can be 1,000 except in the case of Angel Funds. However, if the AIF is set up under the IFSC (Fund Management) Regulations, 2022 the maximum number of investors are:

1. 50 investors in case of a Venture Scheme; and
2. 1000 investors in case of a restricted scheme.

• Investment Restrictions

SEBI has inserted investment restrictions on Investable Funds. “Investable Funds” means a corpus of a scheme of the AIF after deducting or settling the estimated amount for administration and management of the fund during its tenure. There is a restriction on Category I and II AIF that they cannot invest more than 25%of the Investable Funds in a single investee company either directly or through the units of other AIF. Category III AIF is restricted to invest less than 10% of the investable funds in a single investee company either directly or through units of the other AIF investing in the equity of the listed investee company.

• Private Placement

AIF does not invite subscriptions for its units from the public at large. They raise their funds only through private placements. In private placement, the sale of shares or bonds is done to pre-selected investors and institutions instead of an open market or public offering. To simplify the disclosure standards, SEBI has mandated a Private Placement Memorandum (PPM) Template. The PPM template gives prospective investors some amount of preliminary information in the format specified by SEBI. Part A of the PPM template requires minimal disclosures and Part B of the PPM template is the section where the investor can provide any other information as it deems necessary. SEBI has also mandated the inclusion of the Investor Charter component under PPM. Investor Charter is a document that provides information regarding the services offered, grievance procedure, duties of the investor, etc. Investor charter mandate informs the investors about the various AIFrelated actions to increase transparency regarding the process of resolving investor complaints.

Negative List for AIF in India

1. Funds covered under the SEBI (Mutual Funds) Regulations, 1996;
2. Fund covered under the SEBI (Collective Investment Schemes) Regulations, 1999;
3. Any other regulation of SEBI to regulate the fund management activities;
4. Family Trusts;
5. ESOP Trusts;
6. Employee welfare trusts or gratuity trusts;
7. Holding companies;
8. Special Purpose Vehicles not established by fund managers;
9. Funds managed and administered by a securitization company or reconstruction company and registered by the Reserve Bank of India (RBI);
10. Any other pool of funds directly regulated by any other regulator in India.

Taxation Rules for AIF in India

Taxation rules for AIF differ under each category of AIF. Category I and II AIF enjoy the tax pass-through status where any income or loss other than business income, is taxed in the hands of the investor and the hands of the fund. So AIF investments in these two categories of AIF have to pay capital gain tax on profit or loss made from the fund within a given duration. The duration is vital since in Long-term capital gain, the tax rate is 20% along with indexation benefit and for short-term capital gain, the tax rate applicable is 15%. Over and above the tax rates, surcharge and cess charges are applicable. In addition to this, any income other than business income is liable to Dividend Distribution Tax and the investment fund has to deduct 10% TDS from it.

On the other hand, category III AIF is taxable at the fund level and does not enjoy the pass-through status. Tax is paid on the following types of income by Category III AIF:

1. Short-term capital gains
2. Long-term capital gains
3. Dividend income
4. Business income

Conclusion

The rapid growth of AIF in India is due to the reason that AIF reduces the instability pertaining to traditional investments. The performance of AIF does not depend upon the ups and downs of the stock market. It contributes to diversifying the market strategies and investment styles and therefore has huge potential in improving performance. AIF is excepted to grow further into establishing itself as a popular choice for investment subject to necessary action being taken by the government to remove the few prevailing hurdles. 

Read our Article: Winding up and Liquidation of AIF