investment opportunities in india for nri's€¦ · 1. foreign direct investment (fdi) a) fdi...

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11 C.V.O. CA'S NEWS & VIEWS VOL. 22 - NO. 6 - DECEMBER 2018 ABBREVIATIONS Particulars Full Form “DIPP” Department of Industrial Policy & Promotion “FCNR(B)” Foreign Currency Non-Resident (Bank) “FDs” Fixed Deposits “FEMA” Foreign Exchange Management Act “FY” Financial Year “NRE” Non-Resident External “NRNR” Non-Resident Non-Repatriable “NRO” Non-Resident Ordinary “NRSR” Non-Resident Special Rupee “NSC” National Saving Certificates “PAN” Permanent Account Number “PPF” Public Provident Fund “PSU” Public Sector Undertaking “RBI” Reserve Bank of India “SBI” State Bank of India “SEBI” Securities and Exchange Board of India INVESTMENT OPPORTUNITIES IN INDIA FOR NRI'S CA Jini Jain INTRODUCTION India, with its fast developing economy and huge potential for growth, is a great nation that provides host of opportunities for investment.India has been ranked at th 77 place in the “Ease of Doing Business 2019 Survey” among 190 countries surveyed. The climb is 23 places up from the last year's survey.Thanks to the Indian government's liberalized policy regime and robust business environment that have ensured that foreign capital keeps flowing into the country. Further, as NRIs have close ties with India, they have been offered a preferential status to encourage inflow of funds from them in Indian economy. This Article covers various avenues for investment to NRIs in India under different modes. The broad regulatory framework impacting various investments can be comprehended illustratively from the following regulations: Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 read with the Consolidated FDI Policy of DIPP Notification No. FEMA 20(R)/ 2017-RB (Herein referred as Notification No.20(R)) Foreign Exchange Management (Deposit) Regulations, 2016 Notification No. FEMA 5(R)/2016-RB Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 Notification No. FEMA 21(R)/2018-RB (Herein referred as Notification No.21(R)) Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 Notification No.FEMA 3 /2000-RB Foreign Exchange Management (Borrowing and Lending in Rupees) Regulations, 2000 Notification No. FEMA 4/2000-RB

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Page 1: INVESTMENT OPPORTUNITIES IN INDIA FOR NRI'S€¦ · 1. Foreign Direct Investment (FDI) a) FDI is governed by Schedule 1 of Notification No. 20(R).Under this Schedule, an NRI/OCI is

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

ABBREVIATIONS

Particulars Full Form

“DIPP” Department of Industrial Policy & Promotion

“FCNR(B)” Foreign Currency Non-Resident (Bank)

“FDs” Fixed Deposits

“FEMA” Foreign Exchange Management Act

“FY” Financial Year

“NRE” Non-Resident External

“NRNR” Non-Resident Non-Repatriable

“NRO” Non-Resident Ordinary

“NRSR” Non-Resident Special Rupee

“NSC” National Saving Certificates

“PAN” Permanent Account Number

“PPF” Public Provident Fund

“PSU” Public Sector Undertaking

“RBI” Reserve Bank of India

“SBI” State Bank of India

“SEBI” Securities and Exchange Board of India

INVESTMENT OPPORTUNITIESINVESTMENT OPPORTUNITIES

IN INDIA FOR NRI'SIN INDIA FOR NRI'SCA Jini Jain

INTRODUCTION

India, with its fast developing

economy and huge potential for

growth, is a great nation that provides

h o s t o f o p p o r t u n i t i e s f o r

investment.India has been ranked at th77 place in the “Ease of Doing

Business 2019 Survey” among 190

countries surveyed. The climb is 23

places up from the last year's

survey.Thanks to the Indian

government's liberalized policy

regime and robust business

environment that have ensured that

foreign capital keeps flowing into the

country. Further, as NRIs have close

ties with India, they have been offered

a preferential status to encourage

inflow of funds from them in Indian

economy. This Article covers various

avenues for investment to NRIs in

India under different modes. The

broad regulatory framework

impacting various investments can

be comprehended illustratively from

the following regulations:

Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 read with the Consolidated FDI Policy of DIPP

Notification No. FEMA 20(R)/ 2017-RB (Herein referred as Notification No.20(R))

Foreign Exchange Management (Deposi t ) Regulations, 2016

Notification No. FEMA 5(R)/2016-RB

Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018

Notification No. FEMA 21(R)/2018-RB

(Herein referred as Notification No.21(R))

Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000

Notification No.FEMA 3 /2000-RB

Foreign Exchange Management (Borrowing and Lending in Rupees) Regulations, 2000

Notification No. FEMA 4/2000-RB

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

Investment Opportunities In India

Strategic Investment

FDI

LLPs

Firm / Proprietary

concern

Non-Strategic Investment

Portfolio Investment

Other Securities

Investment Vehicles

Other Avenues

FDs

Lending Loans

Immovable Property

IMPORTANT DEFINITIONS

1) Capital instruments: Equity shares including partly paid shares, debentures, preference shares and

warrants issued by an Indian company. 'Debentures' and 'Preference Shares' mean fully, compulsorily &

mandatorilyconvertible debentures and preference shares respectively.

2) Non-Resident Indians (NRIs): An individual resident outside India who is citizen of India.

3) Overseas Citizen of India (OCI): An individual resident outside India who is registered as an Overseas

Citizen of India Cardholder under Section 7(A) of the Citizenship Act, 1955

4) Persons of Indian Origin (PIO)(As defined under Notification 5R):A person resident outside India who

Before discussing the various investment options, it is essential to note that the term 'NRI' is defined

specifically in the respective notifications. Alongwith this term, two terms that are commonly referred are 'PIO'

and 'OCI'. Under Notification Nos. 20(R) and 21(R), PIOs are not considered to be a specific category. They are

subsumed under 'OCI'. Therefore, erstwhile PIO cardholders will now be required to obtain OCI card to be

eligible to invest under the above notifications. However, it is pertinent to note that PIOs continue to be a

recognized status under Notification Nos. 4 and 5(R).

Broad coverage of opportunities in India for NRIs:

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

is a citizen of any country other than Bangladesh or Pakistan or such other country as may be specified

by the Central Government, satisfying the following conditions:

a) Who was a citizen of India by virtue of the Constitution of India / Citizenship Act, 1955

or

b) Who belonged to a territory that became part of India after the 15th day of August, 1947or

c) Who is a child or a grandchild or a great grandchild of a citizen of India or of a person referred to

in clause (a) or (b)

or

d) Who is a spouse of foreign origin of a citizen of India or spouse of foreign origin of a person

referred to in clause (a) or (b) or (c)

Explanation: The expression 'Person of Indian Origin' includes an 'Overseas Citizen of India'

cardholder within the meaning of Section 7(A) of the Citizenship Act, 1955.

5) Repatriable Investment:An investment, the sale or maturity proceeds of which are, net of taxes,

eligible to be repatriated out of India.

6) Non-Repatriable Investment:An investment, the sale or maturity proceeds of which are not

eligible to be repatriated out of India.

1. Foreign Direct Investment (FDI)

a) FDI is governed by Schedule 1 of Notification No. 20(R).Under this Schedule, an NRI/OCI is

permitted to invest in capital instruments of an Indian entity as defined above subject to entry

routes (automatic and/or approval) and sectoral caps for foreign investment, pricing guidelines

and reporting requirements.

b) Regulation 16 to FEMA Notification No. 20R prescribes the entry routes, sectoral caps and

conditionalities against specific sectors/activities permitted.

c) Regulation11 of the said Notification prescribes pricing guidelines which have to be fulfilled at the

time of every issue/transfer of capital instruments. The pricing methodology laid down is as under:

i. Incase of a listed company, price should not be less than the price worked out in

accordance with SEBI guidelines.

ii. In case of an unlisted company, price should not be less than the valuation of capital

instruments done as per any internationally accepted pricing methodology for valuation on an

arm's length basis duly certified by a Chartered Accountant or a SEBI registered Merchant Banker

or a practicing Cost Accountant.

d) Reporting Compliance: Single Master Form (SMF) has been made effective from 01.09.2018

which subsumes Form FC-GPR (including reporting of receipt of share application money that was

reported in Advance Reporting Form) for issue of capital instruments and Form FC-TRS for

transfer of capital instruments. All new filings after 01.09.2018 have to be made in SMF only

within the timelines prescribed. The compliances can be summarized as follows:

Particulars Periodicity Compliance

Reporting on issue/transfer of capital

instruments

One-Time Single Master Form

Reporting of foreign investment in

thIndian entity by 15 July for the

previous financial year

Annual Annual Return on Fore ign

Liabilities and Assets

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

1.a) Investment in LLPs under repatriation basis is covered under Schedule 6 of Notification no. 20(R).

Foreign investment by NRIs/OCIs(other than a citizen of Pakistan or Bangladesh) is permissible under

automatic route in LLPs operating in those sectors where 100% FDI is allowed and there are no FDI

linked performance conditions.It means that there should not be any sector specific conditions for LLPs

receiving foreign investment as stipulated in Regulation 16 of the said Notification.

b) Such investment in an LLP is also subject to compliance of the conditions of Limited Liability Partnership

Act, 2008.

c) : The investment should not be less than the fair price

worked out as per any internationally accepted or adopted market practice method of valuation and a

valuation certificate to that effect shall be issued by the Chartered Accountant or by a practicing Cost

Accountant or by an approved valuer from the panel maintained by the Central Government.

d) Pricing guideline at the time of disinvestment:In case of transfer of capital contribution/ profit share :

Investment in Limited Liability Partnerships (LLPs)

Pricing guideline at the time of investment

Particulars Pricing Guideline

From a person resident in India to a person

resident outside India

Consideration should of

capital contribution/ profit share of an LLP.

not be less than the fair price

From a person resident outside India to a

person resident in India

Consideration should of the

capital contribution/ profit share of an LLP.

not be more than the fair price

Particulars Periodicity Compliance

Reporting on issue/transfer of capital/profit share One-Time Single Master Form

Reporting of foreign investment in LLP by 15 July

for the previous financial year

th Annual Annual Return on Foreign

Liabilities and Assets

2.a) Investment in LLPs under repatriation basis is covered under Schedule 6 of Notification no. 20(R).

Foreign investment by NRIs/OCIs(other than a citizen of Pakistan or Bangladesh) is permissible under

automatic route in LLPs operating in those sectors where 100% FDI is allowed and there are no FDI

linked performance conditions.It means that there should not be any sector specific conditions for LLPs

receiving foreign investment as stipulated in Regulation 16 of the said Notification.

b) Such investment in an LLP is also subject to compliance of the conditions of Limited Liability Partnership

Act, 2008.

c) : The investment should not be less than the fair price

worked out as per any internationally accepted or adopted market practice method of valuation and a

valuation certificate to that effect shall be issued by the Chartered Accountant or by a practicing Cost

Accountant or by an approved valuer from the panel maintained by the Central Government.

d) Pricing guideline at the time of disinvestment:In case of transfer of capital contribution/ profit share :

Investment in Limited Liability Partnerships (LLPs)

Pricing guideline at the time of investment

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

a) A company having foreign investment, engaged in a sector where foreign investment up to

100% is permitted under the automatic route and there are no FDI linked performance conditions, can be

converted into an LLP under the automatic route. Similarly, an LLP which satisfies the above conditions

can also be converted into a company under automatic route.

b) Reporting Compliance:SMF has also subsumed the following:

a) Form LLP-I - For investment of capital contribution and profit share

b) Form LLP-II - For disinvestment/transfer of capital contribution and profit share.

Accordingly, after 01.09.2018, such reporting foreign investment in LLP should be made in SMF within

the timelines prescribed.The compliances canbe summarized as follows:

Conversion:

Particulars Periodicity Compliance

Reporting on issue/transfer of capital/profit share One-Time Single Master Form

Reporting of foreign investment in LLP by 15 July

for the previous financial year

th Annual Annual Return on Foreign

Liabilities and Assets

3.a) Under Schedule 4, an NRI/OCI, including company, a trust and a partnership firm incorporated

outside India and owned and controlled by NRIs/OCIs, may purchase/contribute on non-repatriation basis without any limit:i) Any capital instrument issued by an Indian company, whether listed or not.ii) Units issued by an investment vehicle, either on the stock exchange or outside it.iii) Capital of a Limited Liability Partnership.iv) Convertible notes issued by a startup company in accordance with FEMA regulations.

b)residents. This is a major advantage as such investments are not subject to any compliance, conditions or valuation norms as applicable to other foreign investments.

c) However, they are prohibited from making investment in units of Nidhi company, company engaged in agricultural/plantation activities, real estate business, construction of farm house or dealing in TDRs.

d) The amount invested in the capital instruments or units or capital and the capital appreciation thereon shall not be allowed to be repatriated abroad except under One Million Dollar Scheme per financial year.

e) It is to be noted that investment in a firm or proprietary concern in India was earlier governed under a separate notification which has now been included in Notification No.20(R). Thus, an NRI/OCI can invest in a firm or proprietary concern in India provided it is not engaged in agricultural/plantation activity or print media or real estate business. The investment will be a non-repatriable investment governed by Schedule 4 of Notification No. 20(R).

4. Portfolio Investment on Repatriation Basisa) Schedule 3 of Notification No. 20(R) permits portfolio investment in India by NRIs/OCIs i.e they can

invest in capital instruments of Indian companies listed on a recognized stock exchange. Such investments will be considered as repatriable investments.

b) Investment should be routed through only one branch of Authorised Dealer. The NRE Account should be designated as NRE (PIS) and should be exclusively used for such transactions only.

Investment on Non-repatriation basis

Such investment is deemed to be domestic investment at par with investment made by

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

c) Maximum investment limit:

Particulars Investment Limit in Company

Any individual NRI/OCI Not more than 5%*

All NRIs/OCIs put together Not more than 10%*

*

preference shares or share warrants issued by the Indian company. However, the aggregate ceiling of 10% may

be raised to 24% if a special resolution to that effect is passed by the Indian company.

5.a) Under Schedule 5, an NRI/OCI can purchase the following instruments without any limit based on

option of repatriability:

Based ontotal paid-up equity capital on a fully diluted basis or paid-up value of each series of debentures or

Investment in Securities other than Capital Instruments

Repatriable Investment Non- Repatriable Investment

Government dated securities / treasury bills Government dated securities / treasury bills

Units of domestic mutual funds Units of domestic mutual funds

Bonds issued by a PSUs in India Units of Money Market Mutual Funds

National Pension Scheme National Plan/Savings Certificates

Bonds/ Units issued by Infrastructure Debt Funds Authorised Chit funds

Perpetual debt instruments and debt capital

instruments issued by banks in India

Shares in Public Sector Enterprises being

disinvested by the Central Government, provided the

purchase is in accordance with the terms and

conditions stipulated in the notice inviting bids

*

preference shares or share warrants issued by the Indian company. However, the aggregate ceiling of 10% may

be raised to 24% if a special resolution to that effect is passed by the Indian company.

Based ontotal paid-up equity capital on a fully diluted basis or paid-up value of each series of debentures or

6. Investment in Units of an Investment Vehicle

a) Schedule 8 permits NRIs/OCIs (other than citizens of Pakistan or Bangladesh)to invest in the units of

SEBI registered Investment Vehicles.

b) Investment Vehicle is an entity registered and regulated under relevant regulations framed by SEBI or

any other authority designated for the purpose and shall include:

(i) Real Estate Investment Trusts (REITs) governed by the SEBI(REITs) Regulations, 2014

(ii) Infrastructure Investment Trusts (InvIts) governed by the SEBI (InvIts) Regulations, 2014 and

(iii) Alternative Investment Funds (AIFs) governed by the SEBI (AIFs) Regulations, 2012

c) The downstream investment by the Investment Vehicle into an Indian investee entity is treated as

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

Sr. Particulars Schedule Repatriability Limits Mode of Payment Remittance of Sale Proceeds

(Net of taxes)

1 FDI Schedule 1 Repatriable As specified against the sector

a) Inward Remittanceb) Debit NRE/ FCNR(B) A/c

a) Remit abroadb) Credit NRE/ FCNR(B) A/c

2 Portfolio Investment Schedule 3

Repatriable

Individual NRI/ OCI: 5%

All the NRIs/OCIs: 10%*

a)

Inward Remittance

b)

Debit to NRE(PIS) A/c

a)

Remit abroad

b)

Credit to NRE(PIS) A/c

3 Investment on Non -repatriation basis

Schedule 4

Non-Repatriable

Without limit

a)

Inward Remittance

b)

Debit to NRO/ NRE/ FCNR(B) A/c

Credit to NRO A/c

4 Investment in securities other than capital instruments

Schedule 5

Repatriable

Without limit

a)

Inward Remittance

b)

Debit to NRE/ FCNR(B) A/c

a)

Remit abroadb)

Credit to NRE/ FCNR(B)/NRO A/c

Schedule 5

Non-Repatriable

Without limit

a)

Inward Remittance

b)

Debit to NRO/ NRE/ FCNR(B) A/c

Credit to NRO A/c

5 Investment in LLPs Schedule 6

Repatriable

Sectors where 100% FDI is allowed and there are no FDI linked performance conditions.

a)

Inward Remittance

b)

Debit to NRE/ FCNR(B) A/c

a)

Remit abroadb)

Credit to NRE/ FCNR(B) A/c

6 Investment in units of an Investment Vehicle

Schedule 8 Repatriable Depends on the mode of investment in units

a) Inward Remittanceb) Debit to NRE/ FCNR(B) A/c

a) Remit abroadb) Credit to NRE/ FCNR(B) A/c

The investment under various schedules of FEMA Notification No. 20R alongwith the mode of payment and remittance of the sale/maturity proceeds can be summarized as follows:

*

or preference shares or share warrants issued by the Indian company and limit of 10% may be raised to

24% if a special resolution to that effect is passed by the listed Indian company

Based ontotal paid-up equity capital on a fully diluted basis or paid-up value of each series of debentures

domestic investment if the Sponsor, Manager and Investment Manager of the Investment Vehicle are

owned and controlled by resident Indian Citizens.

Having gone through the various investment modes, let us understand briefly the transfer provisions

with respect to the above Notification:

Modes of Transfer by NRIs/OCIs under Notification No. 20(R)

Transfer by NRI/OCI holding capital instruments of Indian company or units on repatriation basis:

(i) NRI/PIO can transfer by way of sale/gift to a Person resident in India or sell on a recognised stock

exchange in India in the manner prescribed by SEBI. The transfer by way of sale shall be in compliance

with pricing guidelines, documentation and reporting requirements as specified by RBI.

(ii) NRI/PIO can transfer by way of sale/gift to a Person resident outside India. However, prior Government

approval shall be required in case the company is engaged in a sector which requires Government

approval.

Transfer by NRI/OCI holding capital instruments of Indian company or units on non-repatriation basis:

(i) NRI/PIO can transfer by way of sale/gift to a Person resident in India or sell on a recognised stock

exchange in India in the manner prescribed by SEBI. Conditions mentioned in (i) above will not apply.

(ii) NRI/PIO can transfer to a Person resident outside India by way of sale, subject to entry routes, sectoral

caps/ investment limits, pricing guidelines, other attendant conditions as applicable and reporting

requirements as specified by RBI. However, these restrictions shall not apply if the transfer is to an

NRI/OCI who shall holditas non-repatriableinvestment.

(iii) NRI/PIO can gift to an NRI/OCI who shall also hold it as non-repatriable investment.

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

Apart from the above, various other investment opportunities available to NRIs are as follows:

7. Investment in Fixed Deposits as covered under Notification No. 5(R)

Investment in fixed deposits with bank is another viable option for NRIs/PIOs. They can invest in bank fixed

deposits through NRE, NRO or FCNR (B) Account. A comparative chart between the three types is as follows:

Description NRE Account FCNR(B) Account NRO Account

Period for fixed deposits From 1 to 3 years.

However, banks are

allowed to accept

NRE deposits above 3

years from their

Asset-Liability view

Not less than 1 year

and not more than 5

years

As applicable to

resident accounts

Denomination Indian Rupee Any permitted

currency

Indian Rupee

Repatriable Yes Yes No, except for balance

under One Million

Dollar per FY. Current

income is freely

repatriable.

Taxability of Interest on

Deposits as per Indian

tax law

Exempt* Taxable*

*

Note:The interest rates shall depend on the guidelines issued by the Department of Banking Regulations.

1.A. Lending of Loans by NRIs in Foreign exchange covered under Notification No. 3

A resident individual can borrow loan from an NRI who is a close relative outside India upto a sum of USD 250000 or its equivalent subject to the following conditions:

(i) the minimum maturity period of the loan is 1 year(ii) the loan is free of interest; and(iii) the loan is from remittance in free foreign exchange throughnormal banking channels or by debit to

NRE/FCNR account of the NRI.

B. Lending of Loans by NRIs/PIOsin INR covered under Notification No. 4a) To Resident Individuals and Entities in India other than Companies

NRI/PIOs can lend loans in INR to a person resident in India, other than a company in India,i.e. to resident individuals, LLPs, firms etc subject to the following terms and conditions:

(i) Borrowing shall be only on a non-repatriation basis(ii) The amount of loan should be received either by inward remittance from outside India or by debit to

NRE/NRO/FCNR(B)/NRNR/NRSR account of the lender in India;(iii) Period of loan shall not exceed 3 years(iv) Maximum Rate of interest = Bank Rate prevailing on the date of availment of loan plus 2%. (At present,

Taxability as per laws of the resident country should also be examined.

Lending of Loans by NRIs

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

the bank rate is 6.75%)(v) Payment of interest and repayment of principal should be made only to the NRO A/c of the NRI/PIO.

b)A company incorporated in India may borrow in INR, on repatriation or non-repatriation basis, from NRIs subject to the following terms and conditions:

(i) Borrowing company does not and shall not:1. Carry on agricultural/plantation/real estate business; or2. Trade in transferable development rights; or3. Act as Nidhi or Chit fund company.

(ii) Borrowing is only by issuance of non-convertible debentures (NCDs) made by public offer.(iii) The rate of interest is not more than the prime lending rate of SBI as on the date on which the resolution

approving the issue is passed in the borrowing company's General Body Meeting plus 3%;(iv) Period of loan shall not be less than 3 years(v) If the lending is on repatriation basis, the lending should be from inward remittance from outside India

or by debit to NRE/FCNR (B) account of the investor maintained in India.(vi) If the lending is on non-repatriation basis, the lending should be from by inward remittance from

outside India or by debit to NRE/NRO/FCNR(B)/NRNR/NRSR account of the investor maintained in India.Payment of interest and repayment of principal shall be made only to the NRO account of the lender.

END USE RESTRICTIONS FOR BOTH (a) & (b) ABOVE:Ø The proceeds shall be utilised only for own business of the borrower. Ø The restriction on real estate does not include development of townships, construction of

residential/commercial premises, roads or bridges.Construction of farm houses is also not a permitted end-use.

Ø The proceeds should not be used for investment or for on-lending.Ø RBI may permit these borrowers to use the borrowed amount for on-lending to infrastructure sector or

to keep in fixed deposits with banks in India, pending utilisation for permissible end-uses.

Comment: Lending of rupee loans by NRIs to Indian companies whether in the capacity as a shareholder or a director is not permitted under FEMA even though it is permissible under Indian corporate law.

2. Investment in Immovable Property in India under Notification No. 21(R)a) General permission: NRIs/OCIscan invest in commercial or residential immovable property in India.

However, acquisition of agricultural land, farm house or plantation property is not allowed. b) Mode of Payment:

(i) Inward remittance from outside India or (ii) Funds held in NRO/NRE/FCNR accounts.

c) Other Mode of Acquisition for an NRI/OCI:(i) By way of gift from a person resident in India or from an NRI or from an OCI who is a relative as per section 2(77) of the Companies Act, 2013.(ii) By way of inheritance from a Person resident outside India who had acquired the property in accordance with the provisions under FEMA(iii) By way of inheritance from a Person resident in India.

Comment: As persection 2(77) of the Companies Act, 2013, 'Relative' are members of HUF, husband and wife and relatives prescribed as follows:

1. Father (includes step-father)2. Mother (includes step-mother)3. Son (includes step-son)4. Son's wife5. Daughter6. Daughter's husband

To Companies in India

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C.V.O. CA'S NEWS & VIEWSVOL. 22 - NO. 6 - DECEMBER 2018

7. Brother (includes step-brother)8. Sister (includes step-sister)d) No person being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran,

Nepal, Bhutan, Hong Kong or Macau or Democratic People's Republic of Korea (DPRK) without prior permission of RBI shall acquire or transfer immovable property in India, other than lease, not exceeding 5 years. This restriction shall not apply to OCIs.

e) Repatriation of Sale Proceeds:On sale of such immovable property, repatriation outside India will be permitted if the amount for acquisition of the immovable property was paid in foreign exchange received through banking channels or out of funds held in FCNR/NRE account. In case of residential property, the repatriation of sale proceeds is restricted to two such properties.

f) Rental Income:Such property can also be let out and the rental income can be credited to the NRO/NRE A/c.

3.a) NRIs are not eligible to open a new PPF account. However, a resident Indian who subsequently

becomes an NRI can continue to hold the existing PPF account till first maturity.

b) According to the Notification issued by the Government on 03.10.2017, PPF and NSCs held by an NRI would be treated as "deemed to be closed with effect from the day he becomes a non-resident" and would earn interest rate of a post office savings account. However, an Office Memorandum dated 23.02.2018 was later issued, keeping the said notification in abeyance till further notice for PPF account held by NRIs. Interestingly, the said memorandum is silent on NSCs.

One may note that NRIs do have a plenty of opportunities to invest in India. However, it is equally important to note certain prerequisites which are required before actually venturing into any investment activity:

a) PANb) OCI Cardc) Designated NRO/NRE for putting through the banking transactionsd) Demat Account for investing in sharese) Tax Residency Certificateand Form 10F for beneficial treatment under Indian tax regimef) Duly executed Power of Attorney specifying clearly the powers delegatedg) Compliance with KYC norms of various authoritiesh) Valid identity and address proof

Apart from the above procedural aspects, one has to bear in mind various regulatory aspects based on the nature of investment such as repatriation or non-repatriation, mode of investment such as capital instruments, debt instruments or properties, terms and conditions applicable to each mode of investment, mode of acquisition such purchase, gift, inheritance as well as transfer of such investments, restrictions of powers under Power of Attorney as well as implications on holding and reporting of the investments upon change of residential status.

Compliance is an important aspect to be looked into as defaults may result into penalties and compounding under FEMA and other laws.

Considering the economic development India is going through, it is very well going to be an investment hub for investors around the globe. NRIs do enjoy a privileged position for investing in India as compared to foreign investors. Having said that, one has to analyse the risk-reward ratioand the viability of that avenue before investing.One may also note that more and more countries are now trying to regulate investments through the Exchange of Information mechanism. These investments are also subject to multiple compliance from the host country as well as from India and therefore, due care of the interplay between various regulations such as FEMA, Income tax, Company law should be taken to make the investments in India hassle-free and compliant.

Restriction:

Continuation of Public Provident Fund Account

PREREQUISITES BEFORE INVESTING

CONCLUSION