Summary of draft rules/regulations published by RBI for public comments related to overseas investments from India
Overseas Investments and acquisition of immovable properties outside India by persons resident in India is presently governed by the provisions contained in Notification No. FEMA 120/RB-2004 dated July 07, 2004 [Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2004] and Notification No. FEMA 7 (R)/2015-RB dated January 21, 2016 [Foreign Exchange Management (Acquisition and Transfer of Immovable Property Outside India) Regulations 2015] respectively. With a view to further liberalize regulatory framework and also to promote ease of doing business, the Government in consultation with RBI has decided to rationalize the existing provisions governing overseas investment. The draft Rules and Regulations will be finalized after public consultations.
Accordingly, the Reserve Bank of India (RBI) has placed on its website two documents viz draft Foreign Exchange Management (Non-debt Instruments – Overseas Investment) Rules, 2021 and draft Foreign Exchange Management (Overseas Investment) Regulations, 2021. Comments/feedback on the draft rules/regulations are invited from all stakeholders. Comments/feedback may be forwarded through email by August 23, 2021 with the subject line “Feedback on draft Overseas Investment rules & regulations”.
Important points related to draft Foreign Exchange Management/FEM (Non-debt Instruments – Overseas Investment) Rules are listed below.
1. In the case of a NPA account or SMA1 or 2 account, NOC has to be taken from the financial institutions before making financial commitments.
2. A person resident in India is prohibited from making Overseas Direct Investment (ODI) in a foreign entity engaged in (i) Real estate activity; (ii) Gambling in any form; and (iii) Offering financial products linked to Indian Rupee except for products offered in an International Financial Services Centre (IFSC).
3. ODI by a person resident in India shall not be made in a foreign entity located in countries/ jurisdictions that are not FATF (Financial Action Task Force)and IOSCO.
4. Financial commitment by a resident in a foreign entity for the purpose of tax evasion shall be considered to be a contravention of serious/sensitive nature.
5. ODI can be made in a foreign entity engaged in financial services activity subject to conditions, including the regulated Indian entity Indian entity posting net profits during the preceding three financial years.
6. An listed India entity having a minimum net worth of ₹500 crore based on the last audited balance sheet, can make ODI including by way of contribution in an Overseas Technology Fund.
7. An Indian entity may engage in agricultural operations, including purchase of land incidental to such activity, either directly or through an office outside India.
8. Total financial commitments including capitalisation of retained earnings shall not exceed 400 per cent of its net worth as on the date of the last audited balance sheet. The limit shall not apply where the investment is made out of the balances held in its EEFC (Exchange Earners Foreign Currency) account.
9. A listed Indian company may make Overseas Portfolio Investment including by way of reinvestment within the limit of 50 per cent of its net worth as on the date of its last audited balance sheet.
10. An Indian entity, which is a software exporter, may receive foreign securities up to 25 per cent of the value of exports made to a foreign software company irrespective of whether such company is listed or not.
11. A registered trust or a registered society engaged in the educational sector or which has set up hospital(s) in India, with the prior approval of the Reserve Bank, may make ODI in a foreign entity in the same sector it is engaged in.
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