Tuesday, November 21, 2006

INVESTMENTS BY NON-RESIDENTS IN GENERAL PURCHASE OF SHARES AND SECURITIES BY NON-RESIDENTS

Introduction
10.1 (i) Foreign investment in India is subject to policy guidelines framed by the Government of India from time to time in accordance with its Industrial Policy. In terms of the Industrial Policy announced by the Government of India on 24th July 1991 followed by subsequent guidelines issued by them, foreign equity up to 50%/51%/74%, as the case may be, is permitted by Reserve Bank under the Automatic Route in specified industries/services sector.
Applications, which do not conform to the parameters of the Automatic Route, are required to be made to the Secretariat for Industrial Assistance (SIA), Ministry of Industry, Government of India, and New Delhi.
Foreign Institutional Investors are permitted to invest in all securities in primary and secondary markets in India as per guidelines issued by Ministry of Finance, Government of India, New Delhi.
(ii) A wide range of facilities for making investments in India in shares and securities,
Bank deposits, company deposits, etc. is available to individuals of Indian nationality or origin resident outside India (NRIs) and overseas corporate bodies predominantly owned by such persons (OCBs). They are subject to different rules and investments both with repatriation and non-repatriation benefits are permitted under various schemes.
(iii) Foreign investment in India is also subject to regulation through the various provisions of FERA 1973. However, Government under approves once foreign investment its foreign investment and industrial policy, requisite approvals under FERA 1973 are granted by Reserve Bank in pursuance of the Government approval/guidelines.
While the relative provisions of FERA 1973 have been explained in Part 'A', detailed regulations governing investments and certain ancillary matters such as remittance of dividend, royalty and technical know-how fee, sale/transfer of shares, repatriation of capital, etc. are given in Part 'B'.
The various schemes for investment by NRIs/OCBs and other matters relating to loans, overdrafts and guarantees to non-residents have been explained in Parts 'C' and 'D' respectively.
Foreign Investment in India
10.1 (i) Foreign investment in India is subject to policy guidelines framed by the Government of India from time to time in accordance with its Industrial Policy. In terms of the Industrial Policy announced by the Government of India on 24th July 1991 followed by subsequent guidelines issued by them, foreign equity up to 50%/51%/74%, as the case may be, is permitted by Reserve Bank under the Automatic Route in specified industries/services sector.
Applications, which do not conform to the parameters of the Automatic Route, are required to be made to the Secretariat for Industrial Assistance (SIA), Ministry of Industry, Government of India, and New Delhi.
Foreign Institutional Investors are permitted to invest in all securities in primary and secondary markets in India as per guidelines issued by Ministry of Finance, Government of India, New Delhi.
(ii) A wide range of facilities for making investments in India in shares and securities,
Bank deposits, company deposits, etc. is available to individuals of Indian nationality or origin resident outside India (NRIs) and overseas corporate bodies predominantly owned by such persons (OCBs). They are subject to different rules and investments both with repatriation and non-repatriation benefits are permitted under various schemes.
(iii) Foreign investment in India is also subject to regulation through the various provisions of FERA 1973. However, Government under approves once foreign investment its foreign investment and industrial policy, requisite approvals under FERA 1973 are granted by Reserve Bank in pursuance of the Government approval/guidelines.
While the relative provisions of FERA 1973 have been explained in Part 'A', detailed regulations governing investments and certain ancillary matters such as remittance of dividend, royalty and technical know-how fee, sale/transfer of shares, repatriation of capital, etc. are given in Part 'B'.
The various schemes for investment by NRIs/OCBs and other matters relating to loans, overdrafts and guarantees to non-residents have been explained in Parts 'C' and 'D' respectively.
Transfer of Shares/Bonds/Debentures from Non-residents to Residents
10A.4 In terms of Section 19(5) of FERA 1973, no transfer of shares/bonds/debentures of a company registered in India made by a person resident outside India to another person resident in India will be valid unless the transfer is confirmed by Reserve Bank on an application made to it by the transferor or the transferee.
Reserve Bank has, however, exempted transfer of shares, bonds or debentures of Indian companies held by persons of Indian nationality/origin(NRIs) on both repatriation and non-repatriation basis to residents as also transfer of shares, bonds or debentures by way of gift from the purview of Section 19(5) through issue of Notifications under Section 19(6) of the Act, subject to fulfilment of certain conditions.
Responsibility of Companies Registering Transfer of Shares/Securities in favour of NRIs10A.5 In terms of clause (a) of Section 19(4) of FERA 1973 no person can enter transfer of securities in any register or book in which securities are registered or inscribed, if he has any ground to suspect that the transfer involves a contravention of the provisions of Section 19, i.e. issue,transfer or creation of interest in any security to/in favour of a person resident outside India.
Clause (b) of this Section prohibits the registration of the foreign address of the holder of a security except by way of substitution for any such address in the same country or for which permission has been granted by Reserve Bank.
Before registering any transfer of shares/securities in the names of non-residents, companies concerned must obtain permission of Reserve Bank except where such permission has already been obtained by transferor/transferee.
NOTE: See paragraphs 10C.30 and 10C.31 regarding general permission granted to Indian companies for recording overseas address consequent on change of status of the security holder from resident to non-resident or for conversion of holdings into joint holdings between residents/non-residents.
Safe Custody of Shares/Securities10A.6 Authorised dealers and financial institutions extending custodial services may hold in their safe custody, shares and securities issued/transferred to non-residents and also release the shares/securities from non-resident safe custody account for purposes like recording change of name, sale, etc., provided the relative purchase/sale/transfer is covered by the general or special permission of Reserve Bank.
General rule for Remittance of Dividend/Interest/Sale proceeds of Securities
10A.7 As a general rule, the dividend, interest and other income on shares/securities and sale proceeds of shares and securities originally purchased out of funds held in the investor's Ordinary Non-resident Rupee(NRO) accounts as also those acquired subject to the condition that they will not carry the right of repatriation are required to be credited to the investor's NRO account.
In other cases, authorised dealers may remit the net amount of dividend, interest, sale
proceeds etc. after deducting Indian taxes at applicable rates or credit them to the investor's NRE/FCNR accounts to the extent permitted by Reserve Bank [see paragraphs 10B.6, 10B.7 and 10C.24].
Export of Shares/Securities
10A.8 In terms of Section 19(1)(a) of FERA 1973, export of any security (which includes shares, bonds, debentures, etc.) to anyplace outside India requires permission of Reserve Bank.
NOTES: A. Unit Trust of India has been granted general permission by Reserve Bank to export certificates covering units purchased by non-resident investors from out of foreign exchange remittances to India or from their non-resident accounts in India.
B. At the time of granting permission for purchase/issue of shares/bonds/debentures by/to non-residents, permission for export of the share/bond/debenture certificates is generally granted by Reserve Bank. Permission for export of shares/securities will, therefore, be required to be obtained only in cases where such a permission has not been given.
Reporting of investment inflows 10A.9 Reserve Bank has granted general permission under Sections 19(1)(d), 19(1)(a) and 29(1)(b) of the Foreign Exchange Regulation Act, 1973 to Indian companies for issue and exports of shares/securities to non-resident investors, and to non-resident investor to acquire shares/securities of Indian companies under various non-resident direct investment schemes.
In terms of Reserve Bank Notification Nos.FERA 188 and 189/RB-98 dated 11th November 1998 it is obligatory on the part of Indian companies seeking non-resident investment to file a report containing the following particulars with the Regional Office of Reserve Bank not later than 30 days from the date of receipt of remittance.
(a) Name of the foreign investor:
(b) Country of residents or incorporation of the foreign investor;
(c) Date of receipt of remittance and its rupee equivalent;
(d) Name and address of the authorised dealer in India through whom the remittance is received;
(e) Number and date of SIA/FIPB approval in respect of which remittance is received. This requirement is in addition to the submission of the prescribed declaration in form FC(RBI)/ISD(R)/ISD, as the case may be, alongwith the documents, within 30 days form the date of issue of shares.

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