Empower Your Business with Enterslice: RBI and FEMA Compliance Specialists RBI and FEMA's complex rules and regulations can be the most challenging task for businesses and individuals of all sizes. RBI and FEMA compliance is crucially important for companies, but somehow, it can be difficult for businesses to align with the ever-evolving regulatory landscape of RBI and FEMA guidelines compliance. At Enterslice, our Experts on RBI and FEMA compliance and Advisory landscape work closely with businesses and keep them at the forefront of the regulatory landscape. Our team of professionals is well-versed and deeply rooted in the understanding of RBI and FEMA compliance in the Indian regulatory space and offers personalized and industry-based practical solutions to help keep your business compliant with the RBI and FEMA regulations. We offer a wide range of expert advice on diverse foreign investments and remittances, provide industry assistance on RBI and FEMA compliance, and offer strategies in dispute resolution. It is evident that corporations and individuals are facing challenges in complying with the RBI and FEMA regulations within the stipulated time period due to the extent of central and state regulations in different industry segments. The importance of RBI and FEMA compliance has subsequently increased due to globalization. We, therefore, help you to resolve your RBI and FEMA compliance worries and offer the full potential to your business or investment within India. RBI and FEMA Compliance Checklist for Companies with Foreign Direct Investment The Foreign Direct Investment (FDI) is governed and regulated by the apex bank (RBI) within India and through the Foreign Exchange Management Act (FEMA), 1999. The Foreign direct investment policy announced by the Indian government and Reserve bank of India under notification vid FEMA 20/2000-RB dated 3rd May 2000 and provided detailed and comprehensive rules and regulations. Moreover, Foreign Direct Investment (FDI) is known as a source of funding through which foreign entities or individuals finance, sponsor, or establish a start-up in the territory of India. FDI can be defined as any overseas investment of more than 10% by a foreign established entity or through a foreigner in an Indian start-up company or venture. The intent of RBI and FEMA compliance is to help and support external trade and payments within India. FEMA facilitates and offers support and assistance towards foreign exchange market development and maintenance within India. FEMA formulates the rules and regulations with specified guideline for FEMA compliance on all foreign exchange transactions within India. Although the Indian Government established a Foreign Investment Facilitation Portal (FIFP), which replaced the Foreign Investment Promotion Board (FIPB) in the year 2017 and facilitate to review and allow foreign investment proposals within Indian territory. FIFP is regulated and governed by the Department of Industry and Internal Trade (DPIIT). Foreign Direct Investment (FDI) in India can be routed in the following ways Automatic Route Within the automatic route, it is not necessary to take prior approval from RBI or the government of India. Government Route Within the government route, prior permission from the government of India is required to take through FIPB.Within India, foreign companies are permitted to make investments in a diverse range of industry segments along with some restrictions in specific industries, including defence, retail and atomic energy. The government of India has put in place policies and regulations to enhance and promote foreign companies to make more investments within India, which involves measures to simplify the entire process of setting up a business entity along with tax and offer other incentives for foreign-owned companies that invest in specific sectors. Certain Specific sectors where 100% FDI is allowed through the Government route; In India, the government permitted several specific sectors and offered 100% FDI relaxation for food products, retail trading, printing and publishing of scientific, magazines, journals, periodicals, core Investment Company with many more. Certain Specific sectors where 100% FDI is allowed through Automatic route The government of India permitted certain sectors with 100% FDI relaxation for Agriculture, Animal husbandry, marketplace model of e-commerce activities, healthcare, manufacturing, textiles & garments, capital goods, etc., and many more. However, the FDI is not allowed for the inventory-based model of e-commerce activities. Certain specific sectors where FDI is restricted through any of the routes The government of India specified a few sectors where FDI is not permitted, such as the lottery business, including the private lottery, online lottery, chit funds, Nidhi Company, Real estate business, construction companies, casinos, Atomic energy, etc., and many more. RBI and FEMA Compliance with FDI Annual Return on Foreign Liabilities and assets (FLA) Annual Performance Report (APR) External Commercial Borrowings (ECB) Advance Reporting Form (ARF) Form FC-GPR Form FC-TRS Form ODI Annual Return on Foreign Liabilities and assets (FLA) The annual return on foreign liabilities and assets (FLA) must be submitted directly from the end of all Indian companies that received foreign direct investments (FDI) or made Foreign direct investments abroad during the previous financial year along with the current financial year, I.e. holding foreign assets or liabilities in the balance sheet records. Due date The due date to file such a form is on or before 15th July of every year. Applicability The annual return on foreign liability and assets (FLA) needs to be submitted by the entities that received FDI (foreign direct investment) or made foreign investment abroad in the previous financial years along with the current financial year. A company which comes under the section 1(4) of the Companies Act,2013 A limited liability Partnership (LLP) duly registered under the Limited Liability Partnership Act 2008 SEBI registered AIF (Alternative Investment Funds), partnership firms, public-private partnerships (PPP), and many more. Annual Performance Report (APR) An annual performance report (APR) facilitates information related to the agency's progress in achieving the goals and objectives as mentioned in the agency's strategic plan and annual performance plan, which includes progress on strategic goals, performance goals and agency priority goals. An Indian resident or a party who made any overseas direct investment (ODI) is required to submit an annual performance report (APR) in Form ODI Part II on the authorized dealer (AD) bank with respect to each joint venture, wholly owned subsidiaries (WOS) abroad duly certified by the statutory auditor of Indian party. Self-certification is necessary in the case of resident individuals. Time Limit The time limit to file such a form is on or before 31st December of every financial year. External Commercial Borrowings External commercial borrowings (ECBs) are the kind of loans within Indian Territory made to Indian borrowers by non-resident lenders in foreign currency. It is mandatory for Indian borrowers to report all their external commercial borrowings (ECBs) before the apex bank (RBI) on a regular monthly basis through an AD category-1 bank in the form of ECB 2 Return on a monthly basis. Time Limit- The time limit to file such an ECB form is on a monthly basis. ECB Framework Refer to the Master Direction on External Commercial Borrowings, Trade Credits and Structured Obligations for ECB Currency of borrowing Forms of ECB Eligible Borrowers Certified lenders Minimum Average Maturity Period (MAMP) Exchange Rate Hedging Provision All in cost ceiling per annum Change of currency of borrowing Limit and Leverage Within the External commercial borrowings framework, all existing eligible borrowers are allowed to raise RCB up to USD 750 million in a financial year through an automatic route. Suppose a denominated ECB is raised from a direct foreign equity holder; then the ECB liability equity ratio for ECB raised through an automatic route must not exceed 7:1. Moreover, the same ratio will not be applicable for the outstanding amount of all ECBs, which includes the proposed one, up to USD 5 million. Although, the borrowing entities are governed by the debt-equity ratio guidelines. ECB Proceeds Abroad ECB proceeds are meant for foreign currency expenditure, which can be parked abroad pending utilization. Till utilization, such funds might be invested further in the below-mentioned liquid assets. Deposits or certificates of deposit or other products offered by a bank rated not less than AA (-) by standard IBCA. Treasury bills, along with other monetary instruments of 1-year maturity with minimum rating. Deposits with the foreign branches and subsidiaries of Indian banks abroad. ECB Proceeds Domestically ECB proceeds showcase that rupee expenditure must be repatriated immediately for credit to their rupee accounts with the AD category one bank within India. ECB borrowers are allowed to park ECB proceeds in term deposits in AD category 1 banks within India for a tenure maximum of 12 months. Loan Registration Number (LRN) Any drawdown of an ECB should undergo after obtaining an LRN certificate from the Reserve Bank of India. In order to get an LRN, borrowers need to submit a certified Form ECB, which includes the requisite terms and conditions of the ECB, in duplicate to the designated AD Category 1 bank. The AD Category 1 bank may forward a copy to the concerned director, Reserve Bank of India, Department of Statistics and Information Management, ECB Division, Mumbai. The copies of the loan agreement to raise ECB do not need to be submitted before the Reserve Bank of India. Changes in terms and conditions of the ECB Changes in ECB parameters as per ECB norms include reduced repayment through mutual agreement held between lender and borrower, which must be reported to DSIM through the revised ECB Form, and the changes must be specifically mentioned within the communication. Monthly Reporting of actual transactions It is mandatory for borrowers to report the actual ECB transactions through Form ECB-2 Return through AD category 1 bank on a regular monthly basis in order to reach DSIM within a period of 7 working days from the closing day of the month to which it relates. If changes are made in ECB parameters, they need to be incorporated within the same ECB 2 Return Form. Late Submission Fee (LSF) for delay in reporting Borrowers who are in compliance with ECB guidelines may regularize the delay in reporting of drawdown ECB proceeds prior to obtaining an LRN or delay in submitting the Form ECB 2 returns by payment of late submission fees as described below Form Delay in Reporting Late Submission Fees (LSF) Form ECB 2 Up to 30 calendar days from the due date of submission INR 5,000 Form ECB 2/Form ECB Up to three years from the due date of submission/date of drawdown INR 50,000 per year Form ECB 2/Form ECB Beyond three years from due date of submission/date of drawdown INR 100,000 per year Advance Reporting Form (ARF) ARF is commonly used by Indian businesses to report the Foreign Direct Investment (FDI) inflows of the investment which has been received from abroad for the issuance of shares or other eligible securities. The FDI scheme requires reporting the details of the amount of consideration to the RBI regional office through its AD category 1 bank within a period of 30 days from the date of such receipt of shares in advance reporting form. Filing of Form FC-TRS Form Foreign Currency- Transfer of Shares (FC-TRS) Form FC-TRS must be filed for the transfer of shares/capital instruments between A person abroad resident holds any capital instruments in any Indian companies on a repatriable basis, and a person resident outside India holding capital instruments on a non-repatriable basis A person resident outside India holds a capital instrument in any Indian company on a repatriable basis and a person resident in India. Therefore, the onus to report shall be on the part of the resident transferor/ transferee or the person living outside India holding some capital instruments on a non-repatriable basis, or the case may apply. Transfer of capital instrument on a recognized stock exchange through a person resident outside India must be reported by such person in the Form FC-TRS to its authorized dealer bank. The transfer of capital Instruments mentioned under regulation 10(9) must be reported in Form FC-TRS to its authorized dealer on receipt of each transaction of payments. The onus to report will be lies upon the resident transferor/transferee. Transfer of participating interest or rights in the field of Oils must be reported through the Form FC-TRS. Non Applicability The transfer of capital instruments through the way of sale held between a person resident outside and holding capital instruments on a non-repatriable basis and a person living in India is not required to report under the Form FC-TRS. Time duration for Filing Form Within a period of 60 days, the Form FC-TRS must be filed to the authorized dealer bank after the transfer of capital instrument or receipt of funds, which may be earlier. Transfer From Transfer from resident to non-resident, such as NRI/OCI, on a repatriable basis. Non-resident to a resident. NRI, OCI, eligible investor on a non-repatriable basis to a non-resident, which includes NRI, OCI on a repatriable basis. Non-residents include NRI, OCI on a repatriable basis to NRI, OCI, and eligible investors on a non-repatriable basis. Transfer Type Transfer in accordance with Regulation 10(3) of FEMA 20(R) - sale of the capital instrument from a person living outside India to a person living within India. Transfer in accordance with Regulation 10(4) of FEMA 20(R)- Sale of capital instruments from a person living within India, including NRI, OCI or eligible investor under FEMA 20 (R)- schedule 4 to a person resident outside India. Transfer in accordance with Regulation 10(5) of FEMA 20 (R)- Gift of capital instruments from a person resident in India such as NRI, OCI, or any eligible investor specified under schedule 4 to FEMA 20 (R) to a person resident outside. Transfer in accordance to Regulation 10(12) of FEMA 20(R)- invocation of pledge Transfer in accordance with Regulation 3 to FEMA 20 (R). Filing of LLP-I A Limited Liability Partnership (LLP) receive any amount of consideration for capital contribution and acquisition of profits shares. It is mandatory to submit the Form LLP (I) to the RBI regional office under whose jurisdiction the Limited Liability partnership company comes. Such reporting must be made within a period of 30 days from the time of receipt of the amount considered. Time Duration to file LLP-I The LLP-I form must be filed with the authorized dealer bank within a period of 30 days from the time of the amount of consideration. Penalties for non-compliance of LLP-I Form To check about the penalties for non-compliance with the LLP-I Form, one should refer to Master Direction- Compounding of contraventions given under the FEMA Act, 1999, duly amended from time to time. Filing of LLP-II The disinvestment or transfer of capital or profit share among the resident and a non-resident of India (vice-versa) must be reported in the Form of LLP (II) before the authorized dealer bank within a time period of 60 days from the time of receipt of funds. Time Frame for Filing LLP-II The Form LLP (II) must be filed within a period of 60 days from the date of receipt of funds before the authorized dealer bank. Transfer Type The transfer of capital or profit shares among a person resident outside India to a person resident in India, which includes NRI, OCI or another eligible investor under schedule 4 of FEMA Act, 20(R). The transfer of capital or profit shares instruments from a person resident outside India to a person resident inside, including NRI, OCI, or other eligible investors specified under Schedule 4 of FEMA Act, 20(R). Penalties for non compliance. One should refer to Master direction- Compounding of contraventions given under FEMA Act, 1999, duly amended from time to time. Compounding of Contraventions Compounding powers on contraventions were given to the Regional offices of the RBI. However, the compounding powers are delegated with an intent to compound on the below-mentioned FEMA rules contraventions (FEMA 20/2000-RB dated 3rd May 2000 till now applicable. FEMA Regulation Brief Description of Contravention Schedule I - Paragraph 9(1)(A) Delay in reporting inward remittance on the issue of shares. Schedule I - Paragraph 9(1)(B) Delay in filing Form FC (GPR) after the issuing of shares. Schedule I - Paragraph 9(2) Delay in filing the Annual Return on Foreign Liabilities and Assets (FLAR). FEMA Regulation Brief Description of Contravention Schedule I - Paragraph 8 Delay issuing shares or refunding application money for more than 180 days. Schedule I - Paragraph 5 Violate the prcing rules to issue shares. Regulation 2(ii) read with Regulation 5(1) Issue of ineligible instruments such as non-convertible debentures, patly paid shares, shares with optionality clause, etc. Schedule I - Paragraph 2 or 3 Issue shaes without taking prior approval of RBI or FIPB, if required Regulation 10A (b)(i) read with paragraph 10 Delay to submit Form FC-TRS on shares transfer from resident to Non-reident person. Regulation 10B (2) read with paragraph 10 Delay to submit Form FC-TRS on shares transfer from Non-resident to reident person. Regulation 4 of FEMA Taking record tranfer of shares by investee company. FEMA Regulation 14(6)(ii)(a) A delay inreporting downstream investment made by an Indian company o an investment vehicle in another Indian company is considered an indirect foreign investment for an investee Indian entity under the terms of FEMA regulations to DIPP. Paragraphs 7(1) and 6(1) of Schedule 9 Delay in reporting the receipt of the consideration amount for capitalprofit and acquisition of profit shares by an LLP, or delay in reporting about the disinvestment or transfer of profit shares between a resident and non-resident in the case of LLPs. (Up to 02.03.2017 and 03.03.2017 to 06.11.2017) Regulation 10(A)(a) Gift of a capital istrument from a resident person of India to a persn outside India without obtaining any permission from the RBI. Powers to compound Assigned to the Reginal office of RBI under the Master Direction of FMA 20(R)/ 2017-RB for specific contraventions made by entities. The powers to compound on specific contraventions made by entities are assigned to the Regional office of RBI under the Master Direction of FEMA 20(R)/ 2017-RB. FEMA Regulation Brief Description of Contravention FEMA Regulation 13.1(1) Delay in reporting inward remittance for the issue of shares. FEMA Regulation 13.1(2) Delay to report Form FC (GPR) after shares are issued. FEMA Regulation 13.1(3) Delay in filing the Annual Return on Foreign Liabilities and Assets (FLA). Schedule I - Paragraph 2 Delay on issue of shares, refund application money for more than 60 days, mode of receipt of funds, etc. FEMA Regulation 11 Pricing norms violation for the issue or transfer of shares. FEMA Regulation 2(v) read with Regulation 5 Issuance of ineligible instruments. FEMA Regulation 16. B Shares are issued without taking prior approval from Apex Bank (RBI) or the government if required. FEMA Regulation 13.1(4) Delay to submit Form FC-TRS for transfer of shares from resident person to non-resident or vice-versa. FEMA Regulation 4 Receive investment within India from a non-resident person or take on record transfer of shares by investee entity. FEMA Regulation 13.1(11) Delay in reporting downstream investment duly invested by an Indian entity or an investment vehicle in another Indian entity to DIPP. FEMA Regulations 13.1(7) and 13.1(8) Delay in reporting the receipt of amount consideration for capital and acquisition of profit shares by an LLP or delay in reporting disinvestment or profit shares between the resident and non-resident Indian and vice versa. FEMA Regulation 10(5) Gift of a capital instrument from a resident person of India to a person outside India without obtaining any permission from the RBI. According to FEMA rules and regulations specified under Section 13 of the FEMA Act, the regulatory authority is free to impose a penalty for contraventions amounting up to the multiple 3 times involved in a contravention. Although the penalty amount is calculated by the Reserve Bank of India, it sometimes may vary depending upon the incorporation of diverse factors. Foreign Exchange Management Act, 1999 (FEMA) Foreign Exchange Management Act, 1999 (FEMA) introduced and replaced the earlier Foreign Exchange Regulation Act (FERA). The intent is to introduce FEMA compliance to consolidate and amend the existing laws related to foreign exchange so as to facilitate external trade and payments to promote the well-ordered country growth and management of the foreign exchange market within India. There is a possibility that FEMA compliance in India made all crimes related to foreign exchange civil mal-practices criminal under the FEMA and RBI compliance. FEMA compliance is significantly drafted and pertinent to all over India and applicable to abroad branches, offices and agencies owned & maintained by Indian citizens. Subsequently, FEMA compliance is applicable to the following business transactions Transfer or publish foreign security by an Indian resident. Transfer or publish any security or foreign security through any branch or agency within India of a resident abroad. Any borrowing or loan in foreign exchange. Any borrowing or lending in INR between people residing in India and persons residing outside India. Deposits are held between an Indian resident and a person living abroad. Holding currency or currency notes or currency exports or imports. Transfer of immovable property outside India other than a lease for not exceeding a period of 5 years. Purchase or transfer of immovable property within India, rather than a lease of property not more than a period of 5 years by a person not living in India. The foreign transactions under FEMA compliance are specially divided into two categories, including Capital Account Transactions The capital account includes all capital transactions. Current Account Transactions The existing current account includes the trade of goods and services. A current account transaction includes the inflow and outflow of money to and from different countries during a year due to trade/rendering of commodities, services, and income. However, some sorts of transactions are strictly prohibited under FEMA compliance. Our FEMA and RBI compliance Services We at Enterslice help in FEMA and RBI compliance as FEMA prescribes specific necessary compliances in the form of reporting by a person who carries out transactions duly defined under FEMA compliance. A wide list of compliance includes the foreign liabilities and assets return (FLA Return), annual performance report, Form FC-GPR, and others. We have a team of experts who stay at the forefront of the regulatory norms and landscape within India to provide and assist our clients in complying efficiently and effectively with the FEMA laws. Our RBI and FEMA compliance services include several compliance offerings. Such as We offer expert advisory to set up foreign companies within India in the form of a liaison office, project office, branch office, etc. Our team will work closely with you and help prepare the draft application in accordance with the specified format for the Reserve Bank of India (RBI). Stay connected to take regular follow-ups with the concerned department of RBI to secure approval. We offer expert guidance and advice on the requisite Documents that need to be maintained and drafted. We provide support in RBI compliance, which needs to be complied with by the foreign companies who have a presence within the Indian Territory. We facilitate assistance in timely reporting to RBI regarding the transactions in the nature of the sale and purchase of securities, issuance of shares to non-residents, remittance abroad, and many more. We also provide advisory assistance related to Indian companies looking to establish their presence abroad and provide expert support to handle their compliance. Our team is well versed and experienced in RBI and FEMA compliance and facilitates the representation facility for our esteemed clients before the RBI compliance on the compounding of offences duly committed under FEMA compliance laws.
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