Compliance & Risk Management Final

["200 its books; and (ii) if it has existing exposure to the borrower, the classification of the acquired exposure shall be the same as the existing classification of the borrower. m)\t If the net present value of the cash flows estimated while acquiring the loan is less than the consideration paid for acquiring the loan, provisions shall be maintained to the extent of the difference. n)\t In the case of ARCs, the asset classification of stressed loans acquired by them and the associated provisions shall be as per the regulations applicable to them. o)\t The lenders shall hold the acquired stressed loans in their books for a period of at least six months before transferring to other lenders. p)\t For NPAs acquired, the transferee should account the cash flows received towards the funded outstanding in the books till the acquisition cost is recovered. Any further cash inflows should be recognized as profit. Transfer of loans to Asset Reconstruction Companies: a)\t Stressed loans in default for more than 60 days and NPAs can be transferred to ARCs. This shall include loan exposures classified as fraud as on the date of transfer. For these the responsibilities of the transferor with respect to continuous reporting, monitoring, filing of complaints with law enforcement agencies and proceedings related to such complaints shall also be transferred to the ARC. b)\t Transferor(s) can enter into agreement with the ARC to share, in an agreed proportion, any surplus realised by the ARC from the concerned stressed loan. c)\t If the transfer is at a price below the net book value (NBV) at the time of transfer, the transferor shall debit the shortfall to the profit and loss account for the year in which the transfer has taken place, or in case of banks use countercyclical and floating provisions. d)\t If the transfer is at a price higher than the net book value (NBV) at the time of transfer, the transferor shall debit the shortfall to the profit and loss account for the year in which the transfer has taken place, or in case of banks use countercyclical and floating provisions. The lender shall reckon the NAV obtained from ARC from time to time, for valuation of such investments. e)\t Investments by lenders in SRs \/ PTCs \/ other securities issued by ARCs in respect of the stressed loans transferred shall be valued periodically in the prescribed manner. f)\t SRs\/PTCs which are not redeemed as at the end of the resolution period (i.e., five years or eight years as the case may be) shall be treated as loss asset in books of the lenders and fully provided for.","201 g)\t A lender cannot at any point of time acquire from ARCs the loan exposures it had earlier transferred to the ARC. But a lender can take over standard accounts from ARCs, where the resolution plan has been successfully implemented and the period equivalent to the \u2018monitoring period\u2019 has elapsed. h)\t Stressed loans taken over by ARCs as agents for recovery in exchange for a fee, will not be removed from the books of the transferors, the realisations received shall be credited to the loan accounts, and provisions made on these as required. National Asset Reconstruction Company Limited (NARCL) Existing ARCs have been helpful in resolution of stressed assets especially for smaller value loans. Various available resolution mechanisms, like Insolvency and Bankruptcy Code (IBC), strengthening of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI Act) and Debt Recovery Tribunals, as well as setting up of dedicated Stressed Asset Management Verticals (SAMVs) in banks for large-value NPA accounts have brought sharper focus on recovery. In spite of these efforts, substantial amount of NPAs continue on balance sheets of banks primarily because the stock of bad loans as revealed by the Asset Quality Review is not only large but fragmented across various lenders. Considering the large stock of legacy NPAs, additional options\/ alternatives are needed. Hence it was decided to set up an ARC at the national level. National Asset Reconstruction Company Limited (NARCL) has been incorporated under the Companies Act and has been licensed by RBI as an Asset Reconstruction Company (ARC). NARCL has been set up by banks to aggregate and consolidate stressed assets for their subsequent resolution. Capitalization of NARCL would be through equity from banks and Non- Banking Financial Companies (NBFCs). Public sector banks are expected to maintain 51% ownership in NARCL. It will also raise debt as required. Resolution mechanisms of this nature which deal with a backlog of NPAs typically require a backstop from Government. This imparts credibility and provides for contingency buffers. Hence, GoI Guarantee of up to Rs 30,600 crore will back Security Receipts (SRs) issued by NARCL. The guarantee will be valid for 5 years. The condition precedent for invocation of guarantee would be resolution or liquidation. The guarantee shall cover the shortfall between the face value of the SR and the actual realisation. The guarantee from Government of India to back SRs issued by NARCL will reduce upfront capitalization requirements and also enhance liquidity of SRs, as such SRs are tradable. Setting up of NARCL is expected to bring several benefits to banks. It will incentivize quicker action on resolving stressed assets thereby helping in better value realization. It will also free up personnel in banks to focus on increasing business and credit growth. There is strong upside potential due to aggregation of assets with a resolution by experts. As the investors in NARCL and holders of SRs, banks will receive the gains. The banks will benefit","202 from upfront recovery in cash of 15%. Further, it will bring about improvement in bank\u2019s valuation and enhance their ability to raise market capital. NARCL proposes to acquire stressed assets of about Rs. 2 Lakh crore in phases within extant regulations of RBI. It intends to acquire these through 15% Cash and 85% in Security Receipts (SRs). The NARCL will acquire assets by making an offer to the lead bank. NARCL is intended to resolve stressed loan assets above `500 crore each amounting to about `2 lakh crore. In phase I, fully provisioned assets of about Rs. 90,000 crore are expected to be transferred to NARCL, while the remaining assets with lower provisions would be transferred in phase II. India Debt Resolution Company Ltd. (IDRCL) Along with setting up of NARCL for acquiring stressed assets from various banks, another institution has been set up to manage the resolution of these stressed assets namely India Debt Resolution Company Ltd. (IDRCL). It is a service company\/ operational entity which will manage the asset and engage market professionals and turnaround experts. Public Sector Banks (PSBs) and Public FIs will hold a maximum of 49% stake and the rest will be with private sector lenders. Once NARCL\u2019s offer is accepted, then, IDRCL will be engaged for management and value addition. IDRCL under an exclusive arrangement will handle the debt resolution process. This exclusive arrangement will be as per the scope defined in the \u2018Debt Management Agreement\u2019 between the two entities. This arrangement will be on a \u2018Principal-Agent\u2019 basis and final approvals and ownership for the resolution shall lie with NARCL as the Principal Bank. This unique Public Private partnership is envisaged to get the best talent in terms of ability to handle large exposures, benefit of aggregation, domain expertise in O&M and debt resolution processes. 5.10 INSOLVENCY AND BANKRUPTCY CODE 2016 Background: The enactment of the Insolvency and Bankruptcy Code, 2016 (IBC) is a watershed towards improving the credit culture in our country. Even special laws such as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 have not led to the desired level of resolution of problem loans of banks and financial institutions. Recognizing that reforms in the bankruptcy and insolvency regime are critical for improving the business environment and alleviating distressed credit markets, the Insolvency and Bankruptcy Code (IBC) was enacted. IBC essentially has three sets of provisions covering \u2013 (i) matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one crore rupees; (ii) matters relating to fresh start, insolvency and bankruptcy of individuals and partnership firms where the amount of the default is not","203 less than one thousand rupees; (iii) matters relating to establishment of the Insolvency and Bankruptcy Board of India. Fundamental Aspects of IBC a)\t The objective of the Act is essentially to provide a forum for the entities and individuals that are under severe financial stress to reach a resolution with their creditors in a holistic manner rather than getting caught in a web of numerous legal actions and suits. Essentially, from this perspective IBC is not directly intended for providing another forum to creditors for recovery action. It nevertheless enables the creditors to realise from a distressed borrower the optimal possible equitable recovery. IBC pertains to matters related to insolvency, liquidation, voluntary liquidation or bankruptcy of entities and individuals. b)\t The provisions of IBC apply to the following: i)\t Any company incorporated under the Companies Act, 2013 or under any previous law. ii)\t Any other company governed by any special act for the time being in force, except in so far as the said provision is inconsistent with the provisions of such Special Act. iii)\t Any Limited Liability Partnership under the LLP Act 2008. iv)\t Any other body incorporated under any law for the time being in force, as the Central Government may specify. v)\t Personal guarantors to corporate debtors. vi)\t Partnership firms and Proprietorship firms. vii)\t Individuals (other than those in (e). c)\t The institutional infrastructure under the IBC rests on five pillars, viz., i)\t The Insolvency and Bankruptcy Board of India (IBBI). ii)\t Insolvency Professional Agencies (IPA) iii)\t Insolvency Professionals (IP) iv)\t Information Utilities (IU); and v)\t Adjudicating Authorities d)\t Adjudicating and Appellate Authorities: Under the IBC different Adjudicating Authorities (AA) have been designated one for Corporate Persons; and other for Individuals and Partnership Firms. Correspondingly, the Appellate authorities are also","204 different. These institutions will seek to achieve smooth functioning of the bankruptcy process. i)\t For corporate persons: The AA in relation to insolvency resolution and liquidation for corporate persons including corporate debtors and personal guarantors thereof is the National Company Law Tribunal (NCLT) having territorial jurisdiction over the place where the registered office of the corporate person is located. The Appellate Authority for matters adjudicated by NCLT is National Company Law Tribunal (NCLAT). ii)\t Jurisdiction of NCLT: Where a CIRPor liquidation proceeding of a corporate debtor is pending before a NCLT, an application relating to the insolvency resolution or liquidation or bankruptcy of a corporate guarantor or personal guarantor of such corporate debtor shall be filed before such NCLT. An IRP or liquidation or bankruptcy proceeding of a corporate guarantor or personal guarantor, of the corporate debtor pending in any court or tribunal are transferred to the AA dealing with IRP or liquidation proceeding of such corporate debtor.The NCLT is vested with all the powers of the DRT for these matters. The NCLT shall have jurisdiction to entertain - a)\t any application or proceeding by or against the corporate debtor or corporate person; b)\t any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and c)\t any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under IBC. iii)\t For individuals and partnership firms: The AA in relation to insolvency matters of individuals and firms is the Debt Recovery Tribunal having territorial jurisdiction over the place where the individual debtor actually and voluntarily resides or carries on business or personally works for gain and can entertain an application under IBC regarding such person. The Appellate Authority for matters adjudicated by DRT is Debt recovery Appellate Tribunal (DRAT). iv)\t Jurisdiction of DRT: The DRT shall have jurisdiction to entertain or dispose of \u2013 a)\t any suit or proceeding by or against the individual debtor; b)\t any claim made by or against the individual debtor; c)\t any question of priorities or any other question whether of law or facts, arising out of or in relation to insolvency and bankruptcy of the individual debtor or firm under IBC.","205 Key Terms i.\t Insolvency: Insolvency is when an individual or organization is unable to meet its outstanding financial debt towards its lender as it become due. Insolvency can be resolved by way of changing the repayment plan of the loans or writing off a part thereof. If it cannot be resolved, then a legal action may lie against the insolvent and its assets will be sold to pay off the outstanding debts. Generally, an official assignee\/ liquidator appointed by the Government of India, realizes the assets and allocates it among the creditors of the insolvent. ii.\t Bankruptcy: Bankruptcy is a concept slightly different from insolvency, which is rather amicable. A bankruptcy is when a person voluntary declares him as an insolvent and goes to the court. On declaring him as \u2018bankrupt\u2019, the court is responsible to liquidate the personal property of the insolvent and hand it out to its creditors. It provides a fresh lease of life to the insolvent. iii.\t Financial Creditors: The term financial debt has been defined in section 5(8) of Code \u201cto mean a debt, along with interest, if any, which is disbursed against the consideration for the time value of money.\u201d Typically financial creditors are those \u201cwhose relationship with the entity is a pure financial contract, such as a loan or a debt security. The key feature of financial transaction as postulated by section 5(8) is its consideration for time value of money. However, homebuyers have also been deemed to be financial creditors under IBC. iv.\t Operational Debt: Section 5(20) of IBC defines an operational debt as \u201ca claim in respect of the provisions of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority\u201d. Operational creditors are those whose claims arise \u201cfrom a transaction on operations\u201d. Salient Provisions of IBC: 1)\t Corporate Insolvency Resolution Process (CIRP): CIRP can be initiated by any Financial Creditor or Operational Creditor or Corporate Debtor, as the case may be, when a default is committed by a corporate debtor. The CIRP should be completed within 180 days, though an extension of 90 days may be permitted by the Adjudicating Authority. The duration for CIRP including the time taken in legal proceedings related to it shall not exceed 330 days from the insolvency commencement date. Once a CIRP is implemented there is prohibition on the following from the date of the moratorium order till completion of CIRP or approval of resolution process or date of liquidation order: i)\t initiating or continuing any suit or any other legal proceedings against the corporate debtor, including execution of any judgment, decree or order;","206 ii)\t dealing in any manner with any of its assets or any legal right or beneficial interest in these by the corporate debtor; iii)\t any action for enforcing any security interest including any action under the SARFAESI Act; iv)\t the recovery of any property in the possession of the corporate debtor by its owner\/ lessor. 2)\t Liquidation Process: The AA orders for liquidation of a corporate debtor in the following circumstances \u2013 i)\t A resolution plan is not received within the prescribed period. ii)\t The resolution plan has been rejected for non-compliance of the specified requirements. iii)\t CoC has decided with minimum 66% voting share to liquidate. iv)\t The Corporate Debtor has contravened the resolution plan. \t The liquidator is required to verify the claims, and for this purpose call from any person any other document as evidence. Based on verification the liquidator may accept or reject the claim wholly or partly. 3)\t Fast Track Insolvency Resolution Process: This is available to \u2013 (a) a corporate debtor with assets and income below a level notified; or (b) a corporate debtor with notified class of creditors or notified amount of debt; or (c) such other notified category of corporate persons. A creditor or the corporate debtor can file an application for fast track insolvency resolution process along with the proof of the existence of default. FIRP shall be completed within a period of ninety days from the insolvency commencement date. The period can be extended maximum up to 45 days. 4)\t Pre-Packaged Insolvency Resolution Process: This is for a corporate debtor classified as a micro, small or medium enterprise. The corporate debtor shall obtain an approval from its financial creditors, not being its related parties, representing not less than sixty-six per cent in value of the financial debt due to such creditors, for the filing of an application for initiating PPIRP. If there is no financial creditor, not being a related party, the approval shall be provided by specified persons. 5)\t Voluntary Liquidation of Corporate Persons: A corporate person may initiate voluntary liquidation proceedings provided as per the prescribed procedure. creditors representing two-thirds in value of the debt of the company shall approve the resolution passed for liquidation within seven days of the resolution of the members of the company.","207 6)\t Fresh Start Process: A debtor, who is unable to pay his debt may apply for a fresh start subject to meeting the prescribed ceilings for annual income, value of assets, and qualifying debts. Also, he is not an undischarged bankrupt nor owns any dwelling unit. 7)\t Insolvency Resolution Process for Individuals\/ Partnership Firms: A debtor who commits a default may apply for this. A creditor may also apply for RIP, and in case of a partnership firm it can be against one or more partners of the firm. A repayment plan may be prepared by the debtor containing nay restructuring proposals, if any, and put up to the creditors for approval. If a repayment plan is approved by the Adjudicating Authority it is implemented. If no repayment plan is approved, the debtor and the creditors can file for bankruptcy. 8)\t Bankruptcy Order for Individuals and Partnership Firm: When an application for bankruptcy is filed an interim-moratorium commences on the date of the application on all actions against the properties of the debtor in respect of his debts and it ceases to have effect on the bankruptcy commencement date. In case of a firm, the interim- moratorium operates against all the partners of the firm. The AA passes a bankruptcy order. On the passing of the bankruptcy order - (a) the estate of the bankrupt shall vest in the bankruptcy trustee; (b) the estate of the bankrupt shall be divided among his creditors; (c) a creditor of the bankrupt shall not\u2014 (i) initiate any action against the property of the bankrupt in respect of such debt; or (ii) commence any suit or other legal proceedings except with the leave of the AA and on the terms as the AA may impose. The secured creditor is required to take action to realise his security within thirty days after the bankruptcy commencement date. 5.11 WILFUL DEFAULTERS Pursuant to the instructions of the Central Vigilance Commission for collection of information on wilful defaults of `.25 lakhs and above by RBI and dissemination to the reporting banks and FIs, a scheme was framed by RBI with effect from 1st April 1999 under which the banks and notified All India Financial Institutions were required to submit to RBI the details of the wilful defaulters. The emphasis on taking strong against borrowers who do not observe financial discipline and\/or indulge in diversion of borrowed funds has been in focus. RBI has taken several measures to bring more discipline in monitoring of advances under consortium\/ multiple lending arrangements. Making the list of defaulters\u2019 public has also been examined as a deterrent measure to wilful default by borrowers. Key Terms: The following terms are to be construed as explained below for these regulations. i.\t Lender: The term \u2018lender\u2019covers all banks\/FIs to which any amount is due, provided it is arising on account of any banking transaction, including off balance sheet transactions such as derivatives, guarantees and letters of credit.","208 ii.\t Unit: The term \u2018unit\u2019 includes individuals, juristic persons and all other forms of business enterprises, whether incorporated or not. In case of business enterprises (other than companies), banks\/FIs may also report (in the Director column) the names of those persons who are in charge and responsible for the management of the affairs of the business enterprise. iii.\t Wilful Default: A \u2018wilful default\u2019 would be deemed to have occurred if any of the following events is noted: a.\t The unit has defaulted in meeting its payment\/repayment obligations to the lender even when it has the capacity to honour the said obligations. b.\t The unit has defaulted in meeting its payment\/repayment obligations to the lender and has not utilised the finance from the lender for the specific purposes for which finance was availed of but has diverted the funds for other purposes. c.\t The unit has defaulted in meeting its payment\/repayment obligations to the lender and has siphoned off the funds so that the funds have not been utilised for the specific purpose for which finance was availed of, nor are the funds available with the unit in the form of other assets. d.\t The unit has defaulted in meeting its payment\/repayment obligations to the lender and has also disposed off or removed the movable fixed assets or immovable property given for the purpose of securing a term loan without the knowledge of the bank\/lender. The identification of the wilful default should be made keeping in view the track record of the borrowers and should not be decided on the basis of isolated transactions\/incidents. The default to be categorised as wilful must be intentional, deliberate and calculated. iv.\t Diversion of Funds: The term \u2018diversion of funds\u2019 should be construed to include any one of the undernoted occurrences: a)\t utilisation of short-term working capital funds for long-term purposes not in conformity with the terms of sanction; b)\t deploying borrowed funds for purposes\/activities or creation of assets other than those for which the loan was sanctioned; c)\t transferring borrowed funds to the subsidiaries\/Group companies or other corporates by whatever modalities; d)\t routing of funds through any bank other than the lender bank or members of consortium without prior permission of the lender; e)\t investment in other companies by way of acquiring equities\/debt instruments without approval of lenders;","209 f)\t shortfall in deployment of funds vis-a-vis the amounts disbursed\/drawn and the difference not being accounted for. v.\t Siphoning of Funds: The term \u2018siphoning of funds\u2019 should be construed to occur if any funds borrowed from banks\/FIs are utilised for purposes unrelated to the operations of the borrower, to the detriment of the financial health of the entity or of the lender. The decision as to whether a particular instance amounts to siphoning of funds would have to be a judgment of the lenders based on objective facts and circumstances of the case. End-Use of Funds: An important aspect of monitoring advances is to monitor the end-use of funds. In cases of project financing, the banks\/FIs seek to ensure end use of funds by, inter alia, obtaining certification from the Chartered Accountants for the purpose. In case of short-term corporate\/ clean loans, such an approach ought to be supplemented by \u2018due diligence\u2019 on the part of lenders themselves, and to the extent possible, such loans should be limited to only those borrowers whose integrity and reliability are above board. The banks need to strengthen their internal controls and the credit risk management system to enhance the quality of their loan portfolio. Some illustrative measures that can be used for monitoring and ensuring end- use of funds are: a)\t Meaningful scrutiny of quarterly progress reports \/ operating statements \/ balance sheets of the borrowers; b)\t Regular inspection of borrowers\u2019 assets charged to the lenders as security; (c) Periodical scrutiny of borrowers\u2019 books of accounts and the \u2018no-lien\u2019 accounts maintained with other banks; c)\t Periodical visits to the assisted units; d)\t System of periodical stock audit, in case of working capital finance; e)\t Periodical comprehensive management audit of the \u2018credit\u2019 function of the lenders, so as to identify the systemic-weaknesses in their credit administration. Penal Measures: The under mentioned measures may be initiated by the banks and FIs against the identified wilful defaulters. Banks may apply these to the cases where the outstanding amount is `25 lakh or more. a)\t No bank or FI should grant any additional facilities to the wilful defaulters listed. b)\t Such companies and their entrepreneurs\/promoters for whom siphoning\/diversion of funds, misrepresentation, falsification of accounts and fraudulent transactions have been detected should be debarred from institutional finance from the scheduled commercial banks, Financial Institutions, and NBFCs, for floating new ventures for","210 a period of 5 years from the date of removal of their name from the list of wilful defaulters as published\/disseminated by RBI\/CICs. c)\t The legal process against the borrowers\/guarantors and foreclosure for recovery of dues should be initiated expeditiously. Criminal proceedings may be initiated against wilful defaulters. d)\t Adopt a proactive approach for a change of management of the wilfully defaulting borrower unit. e)\t A covenant should be included in the loan agreements, that the borrowing company should not induct on its board a person appearing in the list of Wilful Defaulters, and if such a person is found to be on its board, it would be removed expeditiously. The banks and FIs need to put in place a transparent mechanism for the entire process so that the penal provisions are not misused. Guarantees furnished by individuals, group companies & non-group companies: In terms of Section 128 of the Indian Contract Act, 1872, the liability of the surety is co- extensive with that of the principal debtor unless it is otherwise provided by the contract. If a guarantor refuses to comply with the demand made by the creditor\/banker for payment of dues of the borrower, despite having sufficient means, such guarantor would also be treated as a wilful defaulter. Banks\/FIs may ensure that this position is made known to all guarantors at the time of accepting guarantees. Role of auditors: In case any falsification of accounts on the part of the borrowers is observed by the banks\/ FIs, and if it is observed that the auditors were negligent or deficient in conducting the audit, banks should complaint against the auditors with the Institute of Chartered Accountants of India (ICAI) to enable the ICAI to examine and fix accountability of the auditors. The complaints should also be forwarded to the RBI (Department of Banking Supervision, Central Office) and IBA. IBA would circulate the names of such CA firms, amongst all banks who should consider this aspect before assigning any work to them. RBI would share such information with other financial sector regulators\/Ministry of Corporate Affairs (MCA)\/Comptroller and Auditor General (CAG). The lender gives a separate mandate to the borrower\u2019s auditors for a specific certification regarding diversion\/ siphoning of funds by the borrower, a covenant for this purpose may be included in the loan agreements. Lenders could engage own auditors for such specific certification.","211 Role of Internal Audit \/ Inspection The aspect of diversion of funds by the borrowers should be adequately looked into while conducting internal audit \/ inspection of their offices \/ branches and periodical reviews on cases of wilful defaults should be submitted to the Audit Committee of the bank. Reporting to Credit Information Companies a)\t RBI has granted Certificate of Registration to (i) Experian Credit Information Company of India Private Limited, (ii) Equifax Credit Information Services Private Limited, (iii) CRIF High Mark Credit Information Services Private Limited and (iv) Credit Information Bureau (India) Limited (CIBIL) to commence\/carry on the business of credit information. b)\t Banks\/FIs should submit the list of suit-filed accounts and non-suit filed accounts of wilful defaulters of Rs.25 lakhs and above on a monthly or more frequent basis to all the four Credit Information Companies. This would enable such information to be available to the banks\/FIs on a near real time basis. c)\t (c) Banks need not report cases where - (i) outstanding amount falls below Rs.25 lakhs, and (ii)\t where the borrower has fully paid the compromised amount agreed by the bank. d)\t Credit Information Companies (CICs) disseminate the information pertaining to suit filed accounts of wilful defaulters on their respective websites. Credit Information Companies disseminate information on non-suit filed and suit filed accounts respectively of Wilful Defaulters, as reported to them by the banks \/ FIs and therefore, the responsibility for reporting correct information and also accuracy of facts and figures rests with the concerned banks and financial institutions. Banks \/ FIs may also ensure the facts about directors, wherever possible, by cross-checking with Registrar of Companies. Mechanism for identification of Wilful Defaulters The evidence of wilful default should be examined by a Committee headed by an Executive Director or equivalent and consisting of two other senior officers of the rank of GM\/DGM. The Committee, if it considers there is a wilful default, shall issue a Show Cause Notice to the concerned borrower and the promoter \/ whole-time director and after considering their submissions (including those during personal hearing) issue an order recording the fact of wilful default and the reasons for the same. The Order of the Committee is reviewed by a Review Committee headed by the Chairman\/Chairman & Managing Director or the Managing Director & Chief Executive Officer\/CEOs and consisting, two independent directors\/non-executive directors of the bank. Thereafter the order shall be final. Except","212 in very rare cases, a non-whole time director of the defaulting borrower should not be considered as a wilful defaulter. Criminal Action against Wilful Defaulters Consequent upon the recommendations of the Joint Parliamentary Committee, the RBI examined, in consultation with the Standing Technical Advisory Committee on Financial Regulations, the RBI has advised that banks closely monitor the end-use of funds and obtain certificates from the borrowers certifying that the funds have been used for the purpose for which these were obtained. Wrong certification should attract criminal action against the borrower. Besides, there is scope under the existing legislations to initiate criminal action against wilful defaulters, depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code (IPC), 1860. Banks\/FIs are, therefore, advised to seriously and promptly consider initiating criminal action against wilful defaulters or wrong certification by borrowers, wherever considered necessary, based on the facts and circumstances of each case under the above provisions of the IPC. It should also be ensured that the penal provisions are used effectively and determinedly but after careful consideration and due caution. Towards this end, banks\/FIs are advised to put in place a transparent mechanism, with the approval of their Board, for initiating criminal proceedings based on the facts of individual case. Additional Prudential Measures (Advised in Master Circular on IRACP dated 1st April 2023) a)\t The provisioning in respect of existing loans\/exposures of banks to companies having director\/s (other than nominee directors of government\/financial institutions brought on board at the time of distress), whose name\/s appear more than once in the list of wilful defaulters, will be 5% in cases of standard accounts; if such account is classified as NPA, it will attract accelerated provisioning. Asset Classification Period as NPA Accelerated provisioning (%) 25 Sub-standard (secured) 6 months to 1 year 25 Sub-standard (unsecured ab-initio) Up to 6 months 40 (infrastructure loans) 40 100 Sub-standard (unsecured ab-initio) 6 months to 1 year Doubtful I (secured portion) 2nd year Doubtful II (secured portion) 3rd & 4th year b)\t With a view to discouraging borrowers\/defaulters from being unreasonable and non- cooperative with lenders in their bonafide resolution\/recovery efforts, banks may classify such borrowers as non-cooperative borrowers23, after giving them due notice if satisfactory clarifications are not furnished.","213 c)\t If any particular entity is reported as non-cooperative, any fresh exposure to such a borrower will, by implication, entail greater risk necessitating higher provisioning. Banks\/FIs will therefore be required to make higher provisioning as applicable to substandard assets in respect of new loans sanctioned to such borrowers as also new loans sanctioned to any other company that has on its board of directors any of the whole time directors\/promoters of a non-cooperative borrowing company or any firm in which such a non-cooperative borrower is in charge of management of the affairs However, for the purpose of asset classification and income recognition, the new loans would be treated as standard assets. 5.12 LET US SUM UP Income recognition on assets should be objective and based on the record of recovery. Income from NPA assets is to be recognized only when it is actually received. Also the unrealized income booked is reversed. NPAs are classified into three categories based on the period under NPA and realisability of the dues: Sub-standard assets, Doubtful assets, and Loss assets. The primary responsibility for making adequate provisions for any diminution in the value of loan assets, investment or other assets is that of the bank managements and the statutory auditors. Banks are required to make provisions based on specified norms. Banks are also required to create floating provisions. PCR of 70% with reference to the gross NPA position as on September 30, 2010 is prescribed. Banks have been permitted \u2018Technical write-offs\u2019 of NPAs. As good credit risk management practice, banks are required to recognise incipient stress in loan accounts, immediately on default. These accounts are classified as SMA accounts with three sub-categories. Banks sell their financial assets for various reasons including liquidity management, rebalancing their exposures or strategic sales. Stressed asset can be sold to Asset Reconstruction Companies (ARCs), apart from other permitted transferees. IBC essentially has three sets of provisions covering \u2013 (i) insolvency and liquidation of corporate debtors; (ii) fresh start, insolvency and bankruptcy of individuals and partnership firms; (iii) establishment of the Insolvency and Bankruptcy Board of India. The Adjudicating Authority and the Appellate Authority for corporates are National Company Law Tribunal (NCLT) and National Company Law Tribunal (NCLAT); and for individuals and partnership firms are Debt Recovery Tribunal (DRT) and Debt Recovery Appellate Tribunal (DRAT). A \u2018wilful default\u2019 would be deemed to have occurred if unit has defaulted: even when it has the capacity to pay; and has not utilised the finance for the specific purposes; and disposed of the security. To monitor the end-use of funds is important. No bank or FI should grant any additional facilities to the wilful defaulters listed.","214 Banks\/FIs are advised to seriously and promptly consider initiating criminal action against wilful defaulters or wrong certification by borrowers, wherever considered necessary. 5.13 KEY WORDS Non-performing asset; out of order; overdue; Date of Commencement of Commercial Operations; Sub-standard assets; Doubtful Assets; Loss Assets; Past due; Stock audit; Floating provisions; Specific provisions; Interest suspense account; Provisioning Coverage Ratio; Write-off; Technical write-offs; stressed assets; Central Repository of Information on Large Credits (CRILC); inter-creditor agreement; Asset Reconstruction Companies (ARCs); Credit enhancements; Securitisation receipts; Pass-through-certificates; Financial creditors; Operational Debt; Corporate Insolvency Resolution Process; Liquidation Process; Fast Track Insolvency Resolution Process; Pre-Packaged Insolvency Resolution Process; Fresh Start Process; Insolvency Resolution Process; Bankruptcy Order; Wilful defaults; Diversion of Funds; Siphoning of Funds. 5.14 CHECK YOUR PROGRESS 1)\t A _____ asset is one which has been classified as NPA for a period not exceeding 12 months. a)\tSub-standard b)\tStandard c)\tDoubtful d)\t Loss 2)\t In case of NPA account interest on advances against _____is not recognized a)\t Term deposits, b)\tNSC, c)\tIVPs, d)\t Land 3)\t Choose the incorrect statement a)\t On an account (incl. bills purchased and discounted and Government guaranteed accounts) turning NPA, banks should reverse the interest already charged and not collected by debiting Profit and Loss account and stop further application of interest. b)\t Fees, commission and similar income in respect of past periods, if uncollected, need not be reversed.","215 c)\t Interest realized on NPAs may be taken to income account provided the credits in the accounts towards interest are not out of fresh\/additional credit facilities sanctioned to the borrower concerned. d)\t Banks may continue to record such accrued interest, but not realized, in a Memorandum account in their books which should not be taken into account for computing Gross Advances. 4)\t Choose the incorrect statement a)\t A working capital account would not become NPA, if the irregularity continues beyond 90 days if the unit would be working and its financial position is satisfactory. b)\t A NPA loan account, other than restructured and rescheduled, can be upgraded to standard assets upon payment of arrears of interest and principal. c)\t Finance granted to PACS\/FSS under the on-lending system, only that particular portion of credit in default to be classified as NPA. d)\t In staff housing loan or similar other accounts where the interest is to be recovered after repayment of principal, such accounts would become NPA only when there is default in repayment of principal or interest on respective due dates. 5)\t Purchasing bank can classify in its books the purchased NPA as standard for ______ , and thereafter as per the performance in its books. a)\t 90 days. b)\t 180 days. c)\t 1 year. d)\t None of the above. 6)\t Wilful defaulters are debarred from institutional finance from the scheduled commercial banks, Financial Institutions, NBFCs, for floating new ventures for ________ from the date of removal of their name from the list of wilful defaulters. a)\t 10 years. b)\talways. c)\t 5 years. d)\t 20 years.","216 5.15 KEY TO \u2018CHECK YOUR PROGRESS\u2019 1(a); 2(d); 3(b); 4(a); 5(a); 6(c). References: 1)\t RBI Circular DOR.STR.REC.3\/21.04.048\/2023-24datedApril 1, 2023 - Master Circular - Prudential norms on Income Recognition, Asset Classification and Provisioning pertaining to Advances. (https:\/\/www.rbi.org.in\/Scripts\/BS_ViewMasCirculardetails. aspx?id=12472) 2)\t RBI Circular DOR.STR.REC.51\/21.04.048\/2021-22 dated September 24, 2021- Master Direction \u2013 Reserve Bank of India (Transfer of Loan Exposures) Directions, 2021 (https:\/\/www.rbi.org.in\/Scripts\/BS_ViewMasDirections.aspx?id=12166) 3)\tRBI Circular DBR.No.CID.BC.22\/20.16.003\/2015-16 dated July 1, 2015 - Master Circular on Wilful Defaulters (https:\/\/www.rbi.org.in\/Scripts\/BS_ ViewMasCirculardetails.aspx?id=9907) 4)\t The Insolvency and Bankruptcy Code, 2016 (https:\/\/www.indiacode.nic.in\/ handle\/123456789\/2154?sam_handle=123456789\/1362) 5)\t RBI Circular DOR.STR.REC.20\/21.04.048\/2023-24 dated June 08, 2023 - Framework for Compromise Settlements and Technical Write-offs (https:\/\/www.rbi.org.in\/Scripts\/ NotificationUser.aspx?Id=12513&Mode=0)","217 CHAPTER 6 FOREIGN EXCHANGE OPERATIONS UNDER FEMA STRUCTURE 6.1\t Foreign Direct Investment (FDI) 6.2\t Overseas Investment by Persons Resident in India 6.3\t External Commercial Borrowing (ECB) and Trade Credits 6.4\t Export of Goods & Services 6.5\t Import of Goods & Services 6.6\t Forex Facilities for Individuals (LRS, NRE\/NRO\/FCNR(B)) 6.7\t Operations of Subsidiaries and Branches of Indian Banks and All India Financial Institutions (AIFIS) in Foreign Jurisdictions and in International Financial Services Centers (IFSCS) - Compliance with Statutory\/Regulatory Norms 6.8\t Let us Sum up 6.9\t Key Words 6.10\tCheck Your Progress 6.11\tKey to \u2018Check your Progress\u2019","218 OBJECTIVES In this Chapter the learner will \uf0ae\t Know about various aspects of Foreign Exchange related Regulations \uf0ae\t Learn about the regulations pertaining to Foreign Investments in India \uf0ae\t Understand the regulations pertaining to investments overseas by residents in India \uf0ae\t Know the provisions related to external commercial borrowings and trade credits \uf0ae\t Learn about the norms related to transactions for export\/ import of goods\/ services \uf0ae\t Know about forex facilities for individuals viz. Liberalised remittances scheme, and various accounts for NRIs 6.1 FOREIGN DIRECT INVESTMENT 6.1.1 Key Terms i.\t\u2018Equity Instruments\u2019 are equity shares, convertible debentures, preference shares and share warrants issued by an Indian company. ii.\t\u2018Convertible Note\u2019 is an instrument issued by a start-up company evidencing receipt of money initially as debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of such start-up company, within a period not exceeding five years from the date of issue of the convertible note, upon occurrence of specified events as per the other terms and conditions agreed to and indicated in the instrument. iii.\t\u2018E-commerce\u2019 is buying and selling of goods and services including digital products over digital & electronic network. iv.\t\u2018E-commerce entity\u2019 are the following entities conducting the e-commerce business a)\t a company incorporated under the Companies Act, 1956 or the Companies Act, 2013 or b)\t a foreign company covered under section 2 (42) of the Companies Act, 2013 or c)\t an office, branch or agency in India owned or controlled by a person resident outside India and v.\t\u2018Inventory based model of e-commerce\u2019 means an e-commerce activity where inventory of goods and services is owned by e-commerce entity and is sold to the consumers directly. vi.\t\u2018Market place model of e-commerce\u2019 means providing of an information technology platform by an e-commerce entity on a digital & electronic network to act as a facilitator between buyer and seller.","219 (Foreign investment is not permitted in Inventory based model of e-commerce.) vii.\t\u2018FDI linked performance conditions\u2019 is the sector specific conditions stipulated in Schedule I of the NDI Rules for companies receiving foreign investment. viii.\t\u2018Foreign Portfolio Investor (FPI)\u2019 is a person registered in accordance with the provisions of Securities Exchange Board of India (SEBI) (Foreign Portfolio Investors) Regulations, 2014, as amended from time to time. ix.\t \u2018Foreign Institutional Investor (FII)\u2019 or a sub account registered under the Securities Exchange Board of India (Foreign Institutional Investors) Regulations, 1995 and holding a valid certificate of registration from SEBI was deemed to be a FPI till the expiry of the block of three years from the enactment of the SEBI (Foreign Portfolio Investors) Regulations, 2014. x.\t \u2018Fully diluted basis\u2019 means the total number of shares that would be outstanding if all possible sources of conversion are exercised. xi.\t \u2018Group company\u2019 is two or more enterprises which, directly or indirectly, are in a position to (a) exercise 26 percent, or more of voting rights in other enterprise; or (b) appoint more than 50 percent of members of board of directors in the other enterprise. xii.\t \u2018Indian entity\u2019 is an Indian company or an LLP. xiii.\t \u2018Investment\u2019 is to subscribe, acquire, hold or transfer any security or unit issued by a person resident in India. \t (Investment will include acquisition, holding or transfer of depository receipts issued outside India, the underlying of which is a security issued by a person resident in India.) \t (For the purpose of an LLP, investment shall mean capital contribution or acquisition\/ transfer of profit shares.) xiv.\t \u2018Investment on repatriation basis\u2019 is an investment, the sale\/ maturity proceeds of which are, net of taxes, eligible to be repatriated and the expression \u2018Investment on non-repatriation basis\u2019, will be construed accordingly. xv.\t \u2018Investment Vehicle\u2019 is an entity registered and regulated under relevant regulations framed by SEBI or any other authority designated for the purpose and will be Real Estate Investment Trusts (REITs) governed by the SEBI (REITs) Regulations, 2014, Infrastructure Investment Trusts (InvITs) governed by the SEBI (InvITs) Regulations, 2014 and Alternative Investment Funds (AIFs) governed by the SEBI (AIFs) Regulations, 2012.","220 \t (A Venture Capital Fund (VCF) established in the form of a trust or a company or a body corporate and registered under the SEBI (Venture Capital Fund) Regulations, 1996 will not be considered as an Investment Vehicle for the purpose of the NDI Rules and this Master Direction.) xvi.\t \u2018Limited Liability Partnership (LLP)\u2019 is a partnership formed and registered under the Limited Liability Partnership Act, 2008. xvii.\t\u2018Listed Indian Company\u2019 is an Indian company which has any of its equity instruments listed on a recognized stock exchange in India and the expression \u2018Unlisted Indian Company\u2019 shall be construed accordingly xviii.\u2018Non-Debt Instruments\u2019 as determined by Central Government by Gazette Notification S.O. 3722 (E) dated October 16, 2019, means the following instruments; namely: - a)\t all investments in equity instruments in incorporated entities: public, private, listed and unlisted; b)\t capital participation in LLP; c)\t all instruments of investment recognised in the FDI policy notified from time to time; d)\t investment in units ofAlternative Investment Funds (AIFs), Real Estate Investment Trust (REITs) and Infrastructure Investment Trusts (InvITs); e)\t investment in units of mutual funds or Exchange-Traded Fund (ETFs) which invest more than fifty per cent in equity; f)\t junior-most layer (i.e. equity tranche) of securitisation structure; g)\t acquisition, sale or dealing directly in immovable property; h)\t contribution to trusts; and i)\t depository receipts issued against equity instruments. xix.\t \u2018Non-Resident Indian (NRI)\u2019 is an individual resident outside India who is citizen of India. xx.\t \u2018Overseas Citizen of India (OCI)\u2019is an individual resident outside India who is registered as an Overseas Citizen of India Cardholder under Section 7(A) of the Citizenship Act, 1955. xxi.\t \u2018Resident Indian citizen\u2019 is an individual who is a person resident in India and is citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955). xxii.\t\u2018Real estate business\u2019 is dealing in land and immovable property with a view to earning profit therefrom and does not include development of townships, construction","221 of residential\/ commercial premises, roads or bridges, educational institutions, recreational facilities, city and regional level infrastructure, townships. Explanation: 1)\t Investment in units of Real Estate Investment Trusts (REITs) registered and regulated under the SEBI (REITs) regulations 2014 shall also be excluded from the definition of \u201creal estate business\u201d. 2)\t Earning of rent income on lease of the property, not amounting to transfer, shall not amount to real estate business. 3)\t Transfer in relation to real estate includes, a)\t the sale, exchange or relinquishment of the asset; or b)\t the extinguishment of any rights therein; or c)\t the compulsory acquisition thereof under any law; or d)\t any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act,1882 (4 of 1882); or e)\t any transaction, by acquiring capital instruments in a company or by way of any agreement or any arrangement or in any other manner whatsoever, which has the effect of transferring, or enabling the enjoyment of, any immovable property. Real estate broking services is excluded from the definition of \u201creal estate business\u201d and 100% foreign investment is allowed in real estate broking services under automatic route. xxiii.\u2018Sectoral cap\u2019 is the maximum investment including both foreign investment on a repatriation basis by persons\u2019 resident outside India in equity instruments of a company or the capital of a LLP, as the case may be, and indirect foreign investment, unless provided otherwise. This shall be the composite limit for the investee Indian entity. \t (FCCBs and DRs having underlying of instruments being in the nature of debt shall not be included in the sectoral cap.) \t (Any equity held by a person resident outside India resulting from conversion of any debt instrument under any arrangement shall be reckoned under the sectoral cap.) xxiv.\t\u2018Unit\u2019 is the beneficial interest of an investor in an investment vehicle. 6.1.2 Fundamental Aspects i.\t A person resident outside India may hold foreign investment either as Foreign Direct Investment or as Foreign Portfolio Investment in any particular Indian company.","222 ii.\t \u2018Foreign Investment\u2019 is any investment made by a person resident outside India on a repatriable basis in equity instruments of an Indian company or to the capital of an LLP. a)\t Issue\/ transfer of \u2018participating interest\/ right\u2019 in oil fields by Indian companies to a person resident outside India would be treated as foreign investment.) b)\t If a declaration is made by persons as per the provisions of the Companies Act, 2013 about a beneficial interest being held by a person resident outside India, then even though the investment may be made by a resident Indian citizen, the same shall be counted as foreign investment. iii.\t \u2018Foreign Direct Investment\u2019 (FDI) is the investment through equity instruments by a person resident outside India (a) in an unlisted Indian company; or (b) in 10% or more of the post issue paid-up equity capital on a fully diluted basis of a listed Indian company. a)\t If an existing investment by a person resident outside India in equity instruments of a listed Indian company falls to a level below 10% of the post issue paid-up equity capital on a fully diluted basis, the investment will continue to be treated as FDI. iv.\t \u2018Foreign Portfolio Investment\u2019 is any investment made by a person resident outside India in equity instruments where such investment is (a) less than 10% of the post issue paid-up equity capital on a fully diluted basis of a listed Indian company or (b) less than 10% of the paid-up value of each series of equity instruments of a listed Indian company. 6.1.3 Entry routes and Permitted sectors a)\t Entry Routes: Foreign investment in the equity instruments of an Indian company can be made through two routes, i.\t Automatic Route - is the entry route in which investment by a person resident outside India does not require the prior approval from the Central Government. ii.\t Government Route - is the entry route in which investment by a person resident outside India requires prior Government approval. Foreign investment received under this route shall be in accordance with the conditions stipulated by the Government in its approval. iii.\t \u2018Government approval\u2019 means approval from the erstwhile Secretariat for Industrial Assistance (SIA)\/ Department of Industrial Policy and Promotion (DIPP)\/ the erstwhile Foreign Investment Promotion Board (FIPB) and\/ or any of the ministry\/ department of the Government of India. Aggregate Foreign","223 Portfolio Investment up to forty-nine (49) percent of the paid-up capital on a fully diluted basis or the sectoral or statutory cap, whichever is lower, shall not require Government approval or compliance of sectoral conditions as the case may be, if such investment does not result in transfer of ownership and control of the resident Indian company from resident Indian citizens or transfer of ownership or control to persons resident outside India. Other investments by a person resident outside India shall be subject to conditions of Government approval and compliance of sectoral conditions as laid down in Schedule I of the NDI Rules. b)\t Sectoral caps: i.\t It means the maximum permissible foreign investment in an Indian entity, including both (a) foreign investment on a repatriation basis by person residents outside India in equity instruments of a company or the capital of a LLP and (b) indirect foreign investment. Sectoral cap for the sectors\/ activities is the limit indicated against each sector. The total foreign investment shall not exceed the sectoral\/ statutory cap. ii.\t Foreign investment in the sectors\/ activities given in Schedule I of the NDI Rules is permitted up to the limit indicated against each sector\/ activity, subject to various conditions. iii.\t Foreign investment is permitted up to 100% on the automatic route, subject to applicable laws\/rules\/regulations, security and other conditionalities, in sectors\/ activities not listed in Schedule I of the NDI Rules and not prohibited under Para (2) of Schedule I of the NDI Rules. This condition is not applicable for activities in financial services. iv.\t Foreign investment in financial services other than those indicated in Schedule I of the NDI Rules would require prior Government approval. v.\t Investing companies: Foreign Investment in investing companies not registered as Non-Banking Financial Companies with the RBI and in core investment companies (CICs), both engaged in the activity of investing in the capital of other Indian entities, will require prior Government approval. Foreign investment in investing companies registered as NBFCs with the RBI, will be under 100% automatic route. vi.\t Indian Company (No operations): Foreign Investment in equity instruments of an Indian company, which does not have any operations and also has not made any downstream investment for undertaking activities which are under automatic route and without FDI linked performance conditions, may be received under automatic route. However, Government approval will be required for such companies for","224 undertaking activities which are under Government route. Also, when such a company commences business(s) or makes downstream investment, it will have to comply with the relevant sectoral conditions on entry route, conditionalities and caps. vii.\t Aggregate Foreign Portfolio Investment up to (a) 49% of the paid-up capital on a fully diluted basis or (b) the sectoral or (c) statutory cap, whichever is lower, shall not require Government approval or compliance of sectoral conditions as the case may be, if such investment does not result in transfer of ownership and control of the resident Indian company from resident Indian citizens or transfer of ownership or control to persons resident outside India. Other investments by a person resident outside India shall be subject to conditions of Government approval and compliance of sectoral conditions as laid down in Schedule I of the NDI Rules. viii.\t The onus of compliance with the sectoral\/ statutory caps on foreign investment and attendant conditions if any, will be on the company receiving foreign investment. 6.1.4 Prohibited sectors\/ persons a)\t Investment by a person resident outside India is prohibited in the following sectors: i.\t Lottery Business including Government\/ private lottery, online lotteries. ii.\t Gambling and betting including casinos. iii.\t Chit funds iv.\t Nidhi company v.\t Trading in Transferable Development Rights (TDRs). vi.\t Real Estate Business or Construction of farm houses. (Excludes - development of townships, construction of residential or commercial premises, roads or bridges and Real Estate Investment Trusts (REITs) registered and regulated under the SEBI (REITs) Regulations, 2014) vii.\t Manufacturing of Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes. viii.\t Activities\/sectors not open to private sector investment viz., (i) Atomic energy and (ii) Railway operations ix.\t Foreign technology collaboration in any form including licensing for franchise, trademark, brand name, management contract is also prohibited for lottery business and gambling and betting activities.","225 b)\t Investment from following specified countries requires Government approval: i.\t By an entity of a country with land border with India or the beneficial owner of the investment is situated or is a citizen of such country. ii.\t A person who is a citizen of Pakistan or an entity incorporated in Pakistan. It cannot invest in defence, space, atomic energy and sectors\/ activities prohibited for foreign investment. iii.\t If on transfer of ownership of any existing or future FDI in an entity in India, directly or indirectly, the beneficial ownership falls within the restriction or purview of the preceding two stipulations, it shall also require government approval. 6.1.5 Permitted Investments by persons resident outside India a)\t General modes for Investments \t Persons resident outside India, in different categories, may make investment in India though any of the under mentioned modalities, subject to specific conditions laid down for each of these. i.\t Subscribe\/ purchase\/ sale of equity instruments of an Indian company ii.\t Purchase\/ sale of equity instruments of a listed Indian company on a recognised stock exchange in India by Foreign Portfolio Investors iii.\t Purchase\/ sale of equity instruments of a listed Indian company on a recognised stock exchange in India by Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) on repatriation basis iv.\t Purchase\/ sale of equity instruments of an Indian company or Units or contribution to capital of a LLP or a firm or a proprietary concern by Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) on a Non-Repatriation basis v.\t Investment in a Limited Liability Partnership (LLP) vi.\t Investment by a Foreign Venture Capital Investor (FVCI) vii.\t Investment in an Investment Vehicle. viii.\t Issue\/ transfer of eligible instruments to a foreign depository for the purpose of issuance of depository receipts by eligible person(s) ix.\t Purchase\/ sale of Indian Depository Receipts (IDRs) issued by Companies Resident outside India x.\t Investment by other non-resident Investors","226 b)\t Specific modes of Investments i.\t Acquisition through rights issue or bonus issue \t A person resident outside India having investment in an Indian company is permitted to invest in the equity instruments (other than share warrants) issued by such company as a rights issue or a bonus issue subject to conditions specified for the purpose. \t A person resident outside India exercising a right which was issued when he\/ she was a person resident in India can hold the equity instruments so acquired on exercising the right on a non-repatriation basis. \t Indian company may allot to existing shareholders who are persons resident outside India additional equity instruments (other than share warrants) as a rights issue over and above their rights entitlement subject to individual or sectoral caps, as the case may be. ii.\t Renunciation of rights \t A person resident outside India may acquire a right from a person resident in India who has renounced it, and the equity instruments so acquired shall be subject to the conditions applicable to the original shareholding. iii.\t Employees\u2019 Stock Options (ESOP) and Sweat Equity Shares \t An Indian company can issue \u201cemployees\u2019 stock option\u201d and\/ or \u201csweat equity shares\u201d to its employees\/ directors or employees\/ directors of its holding company or joint venture or wholly owned overseas subsidiary\/ subsidiaries who are resident outside India, subject to certain specific conditions. Such issues to a citizen of Bangladesh\/ Pakistan requires prior Government approval. iv.\t Issue of Convertible Notes by an Indian startup company \t Investment in convertible notes issued by an Indian startup company for an amount of `25 lakh or more in a single tranche, is permitted subject to certain conditions. This is not permitted for an individual who is citizen of Pakistan or Bangladesh or an entity which is registered\/ incorporated in Pakistan or Bangladesh. An NRI or an OCI may acquire convertible notes on a non-repatriation basis. A person resident outside India can acquire or transfer by way of sale, convertible notes, from or to, a person resident in or outside India, in accordance with the entry routes and pricing guidelines. The convertible note may either be converted to equity shares or repaid within 5 years from the date of the issue at the option of the holder.","227 v.\t Merger or demerger or amalgamation of Indian companies \t In case of merger\/ amalgamation\/ reconstruction\/ demerger pertaining to Indian company(ies) approved by the National Company Law Tribunal (NCLT)\/ Competent Authority, the transferee company\/ the new company, can issue equity instruments to the existing holders of the transferor company who are resident outside India, subject to certain conditions. 6.1.6 Transfer of equity instruments of an Indian company by or to a person resident outside India I.\t A person resident outside India can transfer the equity instruments of an Indian company or units through various modes, subject to specified conditions. i.\t Sale or gift to any person resident outside India except to NRI, OCI or OCB. ii.\t Transfer pursuant to merger, de-merger and amalgamation of entities\/ companies incorporated or registered outside India. iii.\t Prior Government approval is required for a company engaged in a sector requiring prior government approval. iv.\t In case of an FPI, if there is a breach of the applicable aggregate FPI limits or sectoral limits, the FPI is required to sell such equity instruments within five trading days after settlement to a person resident in India eligible to hold such instruments. II.\t\t Transfer by an NRI\/ OCI by way of gift or sale to any person resident outside India i.\t An NRI or an OCI holding equity instruments of an Indian company or units on repatriation basis can transfer the same by way of sale or gift to any person resident outside India. ii.\t Prior Government approval is required for a company engaged in a sector requiring prior government approval. iii.\t In case of an NRI\/ OCI, if there is a breach of the applicable aggregate NRI\/OCI limits or sectoral limits, the FPI is required to sell such equity instruments within five trading days after settlement to a person resident in India eligible to hold such instruments.","228 III.\t Transfer by a NRI\/ OCI holding equity instruments on a non-repatriable basis or a person resident in India by way of sale to any person resident outside India i.\t NRI\/ OCI or a company\/ trust\/ partnership firm incorporated outside India and owned and controlled by NRIs or OCIs holding equity instruments on a non- repatriable basis or a person resident in India may transfer the same to a person resident outside India by way of sale, subject to the adherence to entry routes, sectoral caps\/ investment limits, pricing guidelines and other attendant conditions, as applicable. ii.\t The entry routes, sectoral caps\/ investment limits, pricing guidelines and other attendant conditions, however, will not apply in case the transferee is an NRI or an OCI or a company\/ trust\/ partnership firm incorporated outside India and owned and controlled by NRIs or OCIs acquiring such investment on a non-repatriation basis. IV.\t Transfer by an NRI\/ OCI holding equity instruments on a non-repatriable basis by way of gift to another NRI\/ OCI who will hold such equity instruments on a non-repatriable basis Such transfers have been permitted. V.\t Transfer by person resident outside India to person resident in India or sale on recognised stock exchange in India A person resident outside India is permitted to transfer the shares to a person resident in India by way of sale\/ gift or may sell the same on a recognised stock exchange in India. VI.\t Transfer by way of gift by an NRI\/ OCI holding securities on a non-repatriable basis or a resident to a person resident outside India \t An NRI or an OCI holding securities of an Indian company on a non-repatriation basis or a person resident in India may transfer the securities so held by them to a person resident outside India by way of gift with the prior approval of the RBI, and subject to certain conditions. VII.\t Transfer by way of Pledge i.\t Any person being a promoter of a company registered in India (borrowing company), which has raised external commercial borrowing (ECB) in compliance with the Foreign Exchange Management (Borrowing and Lending in Foreign Exchange) Regulations, 2000 may pledge the equity instruments of the borrowing company or that of its associate resident companies for the purpose of securing the ECB raised by the borrowing company subject to specified conditions.","229 ii.\t Any person resident outside India holding equity instruments in an Indian company or units may pledge the equity instruments or units, to a bank in India or to an overseas bank or to an NBFC subject to specified conditions. iii.\t Any other transfer by way of pledge would require the prior approval of the RBI.. VIII.\tTransfer from a resident to a person resident outside India where the investee company is in the financial sector \t In case of transfer of equity instruments of a company in the financial sector from a resident to a person resident outside India, \u2018fit and proper\/ due diligence\u2019 requirement as regards the non-resident investor as stipulated by the respective financial sector regulator shall have to be complied with by the AD bank. IX.\t Mode of payment \t The amount of consideration for transfer of equity instruments between a person resident in India and a person resident outside India should be received from abroad or remitted from India, as the case may be, through banking channels in India or paid out from or received in, as the case may be, NRE\/ FCNR(B)\/ Escrow accounts. In case of investments on non-repatriation basis, the funds transfer can also be through the NRO account. 6.1.7 Taxes and remittance of sale proceeds An authorised dealer bank may permit the remittance of sale proceeds of a security (net of applicable taxes) to the seller resident outside India provided: a)\t the security was held by the seller on repatriation basis; and b)\t either the security has been sold in compliance with the pricing guidelines or the RBI\u2019s approval has been obtained in other cases for sale of the security and remittance of the sale proceeds thereof. 6.2 OVERSEAS INVESTMENT BY PERSONS RESIDENT IN INDIA 6.2.1 General In August 2022, a significant step has been taken with operationalisation of a new Overseas Investment regime. Foreign Exchange Management (Overseas Investment) Rules, 2022. Major change made are: (i) enhanced clarity with respect to various definitions; (ii) introduction of the concept of \u201cstrategic sector\u201d; (iii) dispensing with the requirement of approval for - deferred payment of consideration; investment\/disinvestment by persons resident in India under investigation by any investigative agency\/regulatory body; issuance of corporate guarantees to or on behalf of second or subsequent level step down subsidiary (SDS); write-off on account of disinvestment; and (iv) introduction of \u201cLate Submission Fee (LSF)\u201d for reporting delays.","230 a)\t Definitions: i.\t\u201cForeign entity\u201d the extant concept of Joint Venture (JV) and Wholly Owned Subsidiary (WOS) is substituted under the new regime with the concept of foreign entity, which means an entity formed or registered or incorporated outside India, including in International Financial Services Centre (IFSC) in India, that has limited liability. ii.\t\u201cLimited liability\u201d means a structure such as a limited liability company, limited liability partnership, etc. where the liability of the person resident in India is clear and limited. iii.\t\u201cIndian entity\u201d means a company defined under the Companies Act, 2013 or a body corporate incorporated by any law for the time being in force or a Limited Liability Partnership formed under the Limited Liability Partnership Act, 2008 or a partnership firm registered under the Indian Partnership Act, 1932. (The earlier concept of Indian party (IP) where all the investors from India in a foreign entity were together considered as IP, has been substituted under the new regime with the concept of Indian entity where each investor entity shall be separately considered as an Indian entity). iv.\t\u201cOverseas Direct Investment (ODI)\u201d means (i) acquisition of any unlisted equity capital or subscription as a part of the Memorandum of Association of a foreign entity, or (ii) investment in 10% or more of the paid-up equity capital of a listed foreign entity, or (iii) investment with control where investment is less than 10% of the paid-up equity capital of a listed foreign entity. \t (Once an investment in a foreign entity is classified as ODI, the investment shall continue to be treated as ODI even if such investment falls below 10% of the paid- up equity capital or the investor loses control in the foreign entity.) v.\t\u201cFinancial commitment\u201d by a person resident in India means the aggregate amount of investment by way of ODI, debt other than Overseas Portfolio Investment (OPI) and non-fund-based facility or facilities extended by it to all foreign entities. vi.\t\u201cOverseas Portfolio Investment (OPI)\u201d means means investment, other than ODI, in foreign securities; b)\t Restrictions and Prohibitions i.\t An AD bank shall not facilitate any transaction in respect of any foreign entity: (a)\t engaged in - (a) real estate activity; (b) gambling in any form; and (c) dealing with financial products linked to the Indian rupee (including non-deliverable trades involving foreign currency-INR exchange rates, stock indices linked to Indian market, etc.) without specific approval of the RBI.","231 (b)\t located in countries\/ jurisdictions as advised by the Central Govt. (c)\t The financial commitment by a person resident in India in a foreign entity that has invested or invests into India at the time of making such financial commitment or at any time thereafter, either directly or indirectly, resulting in a structure with more than two layers of subsidiaries is not permitted. No further layer of subsidiary or subsidiaries shall be added to any structure existing with two or more layers of subsidiaries. \t (Subsidiary is an entity in which the foreign entity has control (which includes a stake of 10% or more in an entity.) c)\t General Permission \t The rules are not applicable to the following investments: (a\t any investment made outside India by a financial institution in an IFSC; (b)\t acquisition or transfer of any investment outside India made \u2013 (i) out of Resident Foreign Currency Account; or (ii) out of foreign currency resources held outside India by a person who is employed in India for a specific duration irrespective of length thereof or for a specific job or assignment, duration of which does not exceed three years; or (iii) in accordance with sub-section (4) of section 6 of the Act. 6.2.2 Permission for Overseas Investment There are two routes for permission to make investments outside India \u2013 i) Automatic Route and ii) Approval Route. A. Automatic Route A person resident in India may make or transfer any investment or financial commitment outside India under general permission\/automatic route, subject to the provisions, in a foreign entity engaged in a bona fide business activity, directly or through SDS\/ special- purpose vehicle (SPV). Financial commitment, exceeding USD 1 billion (or its equivalent) in a financial year shall require prior approval of RBI even though the total financial commitment of the Indian entity is within the eligible limit under the automatic route. B. Approval Route The Applicant shall approach their designated AD bank who shall forward the proposal to the RBI after due scrutiny and with its specific recommendations, after entering particulars in OID application, and quote the transaction number generated. Documents required are: Background and brief details of the transaction; Reason(s) for seeking approval mentioning the extant FEMA provisions; Observations of the designated AD bank with respect to - Prima facie viability of the foreign entity; Benefits which may accrue to India through such","232 investment; Financial position and business track record of the Indian entity and the foreign entity; Any other material observation; Recommendations of the designated AD bank with confirmation that the applicant\u2019s board resolution or resolution from an equivalent body, as applicable, for the proposed transaction(s) is in place; Diagrammatic representation of the organisational structure indicating all the subsidiaries of the Indian entity horizontally and vertically with their stake (direct and indirect) and status (whether operating company or SPV); Valuation certificate for the foreign entity (if applicable). Proposals for investment in Pakistan and any other jurisdiction advised require the approval of the Central Govt. 6.2.3 General Provisions (a)\t Need for NOC: Any person resident in India having an account appearing as a NPA or is classified as wilful defaulter or is under investigation by a financial sector regulator\/ investigative agency shall obtain an NOC from the lender bank\/regulatory body\/ investigative agency concerned, before making financial commitment or undertaking disinvestment. Making payment on a guarantee issued by a person, before an investigation has begun or account is classified as NPA\/wilful defaulter, is not a fresh commitment and hence does not need an NOC. (b)\t Rights and Bonus Shares: A person holding equity capital in a foreign entity can acquire further capital through exercising rights and through bonus shares. (c)\t Acquistion through bidding or tender procedure: Remittance for the purpose of Earnest Money Deposit (EMD) or issue of bid bond guarantee on behalf of residents in India for participation in bidding or tender procedure for acquisition of a foreign entity is permitted. If the bid is not successful, the amount should be repatriated. If after winning the bid, the Indian Party does not proceed with the deal, the bonafide of the transaction should be examined. (d)\t Startups: Any ODI in startups cannot be made from borrowed funds, for which certificate should be obtained from the statutory auditors\/chartered accountant. (e)\t Acquistion by Deferred Payment: Transactions involving deferment of payment should be examined carefully from the agreements, and the period must be defined upfront. (f)\t Mode of Payment: Overseas investment by way of cash is not permitted. No remittance shall be made by any Indian entity to its branch\/office outside India for making any overseas investment. A person resident in India shall not make any payment on behalf of any foreign entity other than by way of financial commitment. Investments in Nepal and Bhutan should be remitted in Indian Rupees. All dues receivable on investments (or financial commitment) made in freely convertible currencies, as well as their sale\/winding up proceeds are required to be repatriated to India in freely convertible currencies only.","233 (g)\t Pricing: Valuation of investment should be as per any internationally accepted pricing methodology and should be at arm\u2019s length basis. The Board of AD bank should have a Policy in place for this purpose and may also spell out the scenarios where such valuation may not be insisted upon: such as (i) transfer on account of merger, amalgamation or demerger or liquidation, where the price has been approved by the competent Court\/Tribunal as per the laws in India and\/or the host jurisdiction or (ii) price is readily available on a recognised stock exchange, etc. (h)\t Transfer of Liquidation: A person in India holding equity capital may transfer such investment. The transferor is required to repatriate all the dues before disinvestment. (i)\t Restructuring: A person resident in India who has made ODI in a foreign entity, may permit restructuring of the balance sheet by such foreign entity. The aggregate investment in both the equity and debt of the foreign entity shall be taken into consideration for computing the proportionate amount of accumulated losses. (j)\t Opening Foreign Currency Account: An Indian entity may open, hold and maintain Foreign Currency Account (FCA) abroad for the purpose of making ODI. (k)\t Obligation of the Investor: The person making investment overseas shall submit the evidence of investment to the AD bank within six months, failing which the funds remitted overseas shall be repatriated within the said period of six months. Any remittance towards a foreign entity shall be facilitated by the AD bank only after obtaining the necessary UIN for such entity. UIN is only a reference number of the database and dose not signify an approval by RBI. (l)\t Delay in Reporting: The LSF for delay in reporting of overseas investment related transactions shall be calculated as per the following matrix: Sr. No. Type of Reporting delays LSF Amount (INR) 1 Form ODI Part-II\/ APR, FLA Returns, Form OPI, 7500 evidence of investment or any other return which does not capture flows or any other periodical reporting 2 Form ODI-Part I, Form ODI-Part III, Form FC, or any [7500 + (0.025% \u00d7 other return which captures flows or returns which A \u00d7 n)] capture reporting of non-fund based transactions or any other transactional reporting \t (\u201cn\u201d is the number of years of delay in submission rounded-upwards to the nearest month and expressed up to 2 decimal points; \u201cA\u201d is the amount involved in the delayed reporting; LSF amount is per return.)","234 \t AD bank shall not facilitate any outward remittance\/further financial commitment by a person resident in India towards a foreign entity until any delay in reporting is regularised. 6.2.4 Financial Commitment by an IndianEntity Limit for Financial Commitment The total financial commitment made by an Indian entity in all the foreign entities taken together at the time of undertaking such commitment shall not exceed 400% of its net worth as on the date of the last audited balance sheet. The total financial commitment shall not include capitalisation of retained earnings for reckoning such limit but shall include \u2013 (i) utilisation of the amount raised by the issue of ADR or GDR and stock-swap of such receipts; and (ii) utilisation of the proceeds from ECB to the extent the corresponding pledge or creation of charge on assets to raise such borrowings has not already been reckoned towards the above limit. Financial commitment made by Maharatna or Navratna or Miniratna or subsidiaries of such public sector undertakings in foreign entities outside India engaged in strategic sectors shall not be subject to the limits. Other Aspects Certain other aspects provided are as follows: (i)\t In case of swap of securities both the legs of transaction shall comply with FEMA provisions. (ii)\t In case of a registered Partnership firm, individual partners may hold shares on behalf of the firm if the host country regulations or operational requirements warrant such holdings. (iii)\t Outward remittance towards financial commitment by way of debt should be permitted only after obtaining the necessary agreement\/ documents for ensuring the bonafides of the transaction. An Indian entity shall not lend directly to its overseas SDS. Further a resident individual shall not make financial commitment by way of debt. (iv)\t For financial commitment by way of Guarantee following provisions apply: (a)\t In the case of performance guarantee, time specified for the completion of the contract shall be treated as its validity period. (b)\t No prior approval from the RBI is needed for remitting the funds from India on account of invocation of a performance guarantee. (c)\t Any guarantee, to the extent of the amount invoked, will be considered as financial commitment by way of debt.","235 (d)\t Roll-over of guarantee shall not be treated as fresh financial commitment. (e)\t A group company of the Indian entity may extend a guarantee if such group company is eligible to make ODI and such guarantee shall be counted towards the utilisation of the financial commitment limit of such group company. In case of a resident individual promoter, the same shall be counted towards the financial commitment limit of the Indian entity. For computing the financial commitment limit of the group company, any fund-based exposure of such group company to the Indian entity or of the Indian entity to such group company, as the case may be, shall be deducted from the net worth of such group company. (v)\t The provisions pertaining to ODI in financial services activity are summarised below: Indian ODI in Subject to the financial commitment limit, entity foreign entity reporting and documentation as per the OI Rules\/ Regulations and other applicable provisions as a) Engaged Engaged in under in Financial Financial Subject to the provisions contained in paragraph 2(1) Services Services of schedule I of the OI Rules. Where such investment activity activity is in IFSC, the requisite approval by the financial services regulator concerned shall be decided within b) Not Not engaged 45 days from the date of receipt of application engaged in in Financial complete in all respects failing which it shall be Financial Services deemed to be approved Services activity Subject to the guidelines issued by the respective activity Engaged in regulator Financial Services Indian entity has posted net profits during the activity except preceding three financial years. However, an Indian banking or entity not meeting 3-year profitability condition may insurance make such ODI in a foreign entity in IFSC in India. Engaged in general Apart from the 3 years profitability criteria, such and health insurance business is supporting the core activity insurance undertaken overseas by such Indian entity. For instance, health insurance to support medical\/ hospital business, vehicle insurance to support the manufacturing\/export of motor vehicles, etc.","236 c) Overseas investment in any sector by banks and non-banking financial institutions regulated by the Reserve Bank shall be subject to such other conditions as may be stipulated by the regulatory department concerned of the Reserve Bank in this regard. d) A foreign entity will be considered to be engaged in the business of financial services activity if it undertakes an activity, which if carried out by an entity in India, requires registration with or is regulated by a financial sector regulator in India. 6.2.5 Overseas Investment by Resident Individuals Any resident individual may make ODI by way of investment in equity capital or OPI subject to the overall ceiling under the Liberalised Remittance Scheme. A resident individual may make or hold Overseas Investment by way of: (i)\t ODI in an operating foreign entity not engaged in financial services activity and which does not have subsidiary or step down subsidiary where the resident individual has control in the foreign entity: (ii)\t OPI, including by way of reinvestment; (iii)\t ODI or OPI may be by way of\u2013 (a)\t capitalisation of any amount due from the foreign entity the remittance of which is permitted or does not require prior permission; (b) swap of securities on account of a merger, demerger, amalgamation or liquidation; (c)\t acquisition of equity capital through rights issue or allotment of bonus shares; (d)\t gift as per the conditions laid down; (e)\t inheritance; (f)\t acquisition of sweat equity shares; (g)\t acquisition of minimum qualification shares issued for holding a management post in a. foreign entity; (h)\t acquisition of shares or interest under Employee Stock Ownership Plan or Employee Benefits Scheme. ODI in case of (f), (g) and (h) is permitted in any foreign entity, even if it is engaged in financial services activity, or it has subsidiary or step down subsidiary where the resident individual has control. A foreign entity will be considered to be engaged in the business of financial services activity if it undertakes an activity, which if carried out by an entity in India, requires registration with or is regulated by a financial sector regulator in India.","237 Following are other provisions in this regard: (i)\t A resident individual having ODI without control in a foreign entity shall not acquire control if the entity subsequently acquires or sets-up a subsidiary\/ SDS. (ii)\t Overseas investment by way of capitalisation, swap of securities, rights\/bonus, gift, and inheritance shall be categorised as ODI or OPI based on the nature of the investment. However, where the investment, whether listed or unlisted, by way of sweat equity shares, minimum qualification shares and shares\/interest under Employee Stock Ownership Plan (ESOP)\/Employee Benefits Scheme does not exceed 10% of the paid- up capital\/ stock of the foreign entity and does not lead to control, such Investment shall be categorised as OPI. (iii)\t In case of swap of securities both the legs of the transaction shall comply with FEMA provisions. If swap of securities results in acquisition of any equity capital which is not in conformity with the OI Rules\/Regulations, it must be disinvested within a period of six months from acquisition. (iv)\t Resident individuals cannot transfer any overseas investment as gift to a person resident outside India. (v)\t Remittances are permitted, towards acquisition of the shares\/interest in an overseas entity under the scheme offered directly by the issuing entity or indirectly through a Special Purpose Vehicle (SPV) \/SDS. (vi)\t Foreign entities can repurchase the shares issued to residents in India under any ESOP Scheme, if it is in terms of the initial offer document. (vii)\tThere is no limit on the amount of remittance towards acquisition of shares\/interest under ESOP\/Employee Benefits Scheme or acquisition of sweat equity shares, but it shall be reckoned towards the LRS limit. 6.2.6 Overseas Investment by a Person Resident in India, Other than an Indian Entity or a Resident Individual These provisions cover following investments: (i) ODI by Registered Trust or Society; (ii) ODI by Mutual Funds (MF) or Venture Capital Funds (VCF) or Alternative Investment Funds (AIF); (iii) Opening of Demat Accounts by clearing corporations of stock exchanges and clearing members; (iv) Acquisition and transfer of foreign securities by domestic depository; (v) Acquisition and transfer of foreign securities by AD bank. Key provisions in this regard are as follows: (i)\t MFs and VCFs\/AIFs may invest in securities as stipulated by SEBI within an overall cap of USD 7 billion and USD 1.5 billion, respectively. Qualified MFs are permitted to invest cumulatively up to USD 1 billion in overseas Exchange Traded Funds, as","238 may be permitted by SEBI. Such investment shall be considered as OPI whether the securities are listed or not. (ii)\t MFs\/VCFs\/AIFs may approach SEBI for necessary permission. Operational modalities shall be as per the guidelines issued by SEBI. General permission is available to such investors for sale of securities so acquired. (iii)\t An AD bank, including its overseas branch, may acquire or transfer foreign securities in terms of host country regulations\/laws, as applicable, in the normal course of its banking business. The provisions contained in OI Rules\/Regulations shall not apply. (iv)\t A bank in India, licensed by RBI, may acquire the shares of Society for Worldwide Interbank Financial Telecommunication (SWIFT) as per the by-laws of SWIFT, if it has been permitted for admission to the \u2018SWIFT User\u2019s Group in India\u2019 as a member. (v)\t In case of sole proprietorship or unregistered partnership firms, investment may be made by the proprietor or the individual partners within their limit under the LRS. If it is in strategic sector, an application for investment in excess of the LRS limit may be made under the government approval route. (vi)\t Overseas investment by registered trust\/society may be made under the approval route. 6.2.7 Overseas Investment in an IFSC in India by a Person Resident in India (i)\t A person resident in India may make overseas investment in an IFSC in India in a manner similar to investment made outside Indian, and subject to the following norms: (ii)\t An Indian entity (listed Indian companies and unlisted Indian entities) or a resident individual, may make investment (including sponsor contribution) in the units of an investment fund or vehicle set up in an IFSC as OPI. (iii)\t The restriction of making ODI only in an operating foreign entity or not making ODI in a foreign entity engaged in financial services activity by resident individuals, shall not apply to an investment made in IFSC. Such foreign entity in IFSC may have subsidiary\/SDS in IFSC. It may also have subsidiary\/SDS outside IFSC where the resident individual does not have control in the foreign entity. Resident individual who has made ODI without control shall not acquire control in a foreign entity that subsequently acquires or sets-up a subsidiary\/SDS outside India. (iv)\t Investment is not permitted in any foreign entity engaged in banking or insurance. (v)\t An Indian entity not engaged in financial services activity in India, making ODI in a foreign entity, which is directly or indirectly engaged in financial services activity, except banking or insurance, who does not meet the net profit condition, may make ODI in an IFSC.","239 (vi)\t a person resident in India may make contribution to an investment fund or vehicle set up in an IFSC as OPI. 6.2.8 Acquisition or Transfer of Immovable Property outside India Restrictions on acquisition or transfer of immovable property outside India do not apply to a property: (i)\t held by a person resident in India who is a national of a foreign State; (ii)\t acquired by a person resident in India on or before the 8th day of July, 1947 and continued to be held by such person with the permission of RBI; (iii)\t acquired by a person resident in India on a lease not exceeding five years. Following are other provisions pertaining to immovable property acquisition or transfer outside India by persons resident in India: (i)\t May acquire by way of inheritance or gift or purchase from a person resident in India who acquired it as per the foreign exchange provisions in force at the time of such acquisition; (ii)\t May acquire from a person resident outside India \u2013 (a) by way of inheritance; (b) by way of purchase out of foreign exchange held in RFC account; (c) by way of purchase out of the remittances sent under the LRS, that may be consolidated in respect of relatives if they are resident in India; (d) jointly with a relative who is a person resident outside India; (e) out of the income or sale proceeds of the assets, other than ODI, acquired overseas.; (iii)\t Indian entity having an overseas office may acquire immovable property for the business and residential purposes of its staff, as per the directions issued by RBI from time to time; (iv)\t Who has acquired any immovable property may \u2013 (a) transfer such property by way of gift to a person resident in India who is eligible to acquire such property under these rules or by way of sale; (b) create a charge on such property. 6.2.9 Operational Instructions Designated banks The eligible person making ODI (or financial commitment) is required to route all its transactions through the AD bank designated by it. In case a foreign entity is being set up by two or more persons resident in India, then all such persons shall route all transactions in respect of that foreign entity only through one designated AD bank. Different AD banks may be designated, if required, for different foreign entities. For switching over to another AD an NOC from the existing AD bank is required. All communication to the RBI should","240 be routed through the nodal branch of the designated AD bank. For proper follow up, the AD bank shall maintain person-wise record in respect of each foreign entity. Overseas investment under OI Rules\/Regulations (i)\t Remittance to be allowed up to the permissible limits on receipt of application in Form FC together with form A-2, duly filled in, subject to their complying with the prescribed conditions. Facilitating remittances towards financial commitment without obtaining the requisite duly completed Form FC will attract penal action for the AD bank. (ii)\t Additional timeline of 15 days is made available toAD bank for reporting of investments\/ financial commitment by their constituents to RBI in the OID application (other than first remittance, which requires to be reported in OID system before executing the transaction, to generate UIN). This period is not to be availed by the Indian entities\/ resident individuals for submission of forms and documents to the AD bank. (iii)\t Remittance is allowed towards loan to the foreign entity and\/ or issue bank guarantee to\/ on behalf of the foreign entity only after ensuring that the Indian entity has made ODI and has control in the foreign entity. (iv)\t RBI will not, generally, specify the documents which should be verified by the AD banks for ensuring the bona fides of the transactions. AD banks shall put in place a standard policy laying down the requirements or documents or information to be obtained by their branches to ensure compliance with said provisions of FEMA. (v)\t AD banks shall ensure bona fides of the transaction, compliance with FEMA provisions, and compliance with KYC\/ AML Guidelines. Any doubtful case\/suspicious transaction shall be referred to Directorate of Enforcement (DoE). (vi)\t In case of ODI by way of capitalisation of export proceeds or other entitlements, Indian entity\/resident individual shall make an application in Form FC to its designated AD bank. AD bank should report in Form FC, compliance with OI Rules\/Regulations and report in EDPMS, wherever applicable, for facilitating such transactions. Where they are overdue beyond the period specified for realisation\/repatriation, before permitting such capitalisation AD bank may grant necessary extension post proper due diligence. (vii)\tRemittance are allowed towards pre-incorporation expenses after satisfying itself of the reasonableness, up to a maximum of USD 100,000 per foreign entity. If made by a resident individual shall be reckoned towards their LRS limit. A person resident in India may capitalise pre-incorporation expenses (i.e., financial commitment by way of ODI) or recognise such expenses as receivables (i.e., financial commitment by way of debt) or account them as expenses in their books. Unless recognised as financial commitment such expenses shall not attract provisions of OI Rules\/Regulations.","241 Online Reporting (i)\t The online reporting shall be made by the Centralised Unit\/Nodal Office of AD banks. The overseas investment application is hosted on the Reserve Bank\u2019s Website at https:\/\/fed.rbi.org.in. AD banks shall be responsible for the validity of the information reported online. (ii)\t AD banks should put in place proper processes and systems and issue necessary instructions to all the dealing officials at the bank\/branch level to ensure compliance with these directions. 6.3 EXTERNAL COMMERCIAL BORROWING (ECB) AND TRADE CREDITS \t (TC) 6.3.1 Important Terms Used under ECB and TC Frameworks 1)\t All-in-Cost: It includes rate of interest, other fees, expenses, charges, guarantee fees, ECA charges, whether paid in foreign currency or INR but will not include commitment fees and withholding tax payable in INR. Under TC Framework, all-in-cost shall include rate of interest, other fees, expenses, charges, guarantee fees whether paid in foreign currency or INR. Withholding tax payable in INR shall not be a part of all-in- cost. (For certain components of all-in-costs ceilings have been prescribed). Various components of all-in-cost have to be paid by the borrower without taking recourse to the drawdown of ECB\/TC, i.e., ECB\/TC proceeds cannot be used for payment of interest\/charges. 2)\t Approval route: ECB\/TC can be raised either under the automatic route or under the approval route. Under the approval route, the prospective borrowers are required to send their requests to the RBI through their AD Banks for examination. 3)\t Automatic route: For the automatic route, the cases are examined by the AD Category-I banks. 4)\t Benchmark rate: Benchmark rate in case of FCY ECB\/TC refers to any widely accepted interbank rate or ARR of 6-month tenor, applicable to the currency of borrowing. Benchmark rate in case of Rupee denominated ECB\/TC will be prevailing yield of the Government of India securities of corresponding maturity. 5)\t Designated Authorised Dealer Category I Bank: It is the bank branch which is designated by the ECB\/TC borrower for meeting the reporting requirements including obtaining of the LRN\/LIN from the Reserve Bank, exercising the delegated powers under these guidelines and monitoring of ECB\/TC transactions. 6)\t ECB liability -Equity ratio: For this purpose, ECB amount will include outstanding amounts of all ECBs (other than INR denominated) and the proposed one (only","242 outstanding ECB amounts in case of refinancing) while equity will include the paid-up capital and free reserves (including the share premium received in foreign currency). Both ECB and equity amounts will be calculated with respect to the foreign equity holder. Where there is more than one foreign equity holder in the borrowing company, the portion of the share premium in foreign currency brought in by the lender(s) concerned shall only be considered for calculating the ratio. The ratio will be calculated as per latest audited balance sheet. 7)\t FATF compliant country: A country that is a member of the Financial Action Task Force (FATF) or a member of a FATF-Style Regional Body; and should not be a country identified in the public statement of the FATF as (i) A jurisdiction having a strategic Anti-Money Laundering or Combating the Financing of Terrorism deficiencies to which counter measures apply; or (ii) A jurisdiction that has not made sufficient progress in addressing the deficiencies or has not committed to an action plan developed with the FATF to address the deficiencies. 8)\t Foreign Currency Convertible Bonds (FCCBs): It refers to foreign currency denominated instruments which are issued in accordance with the Issue of Foreign Currency Convertible Bonds and Ordinary Shares (Through Depositary Receipt Mechanism) Scheme, 1993. Issuance of FCCBs shall also conform to other applicable regulations. Further, FCCBs should be without any warrants attached. 9)\t Foreign Currency Exchangeable Bonds (FCEBs): It refers to foreign currency denominated instruments which are issued in accordance with the Issue of Foreign Currency Exchangeable Bonds Scheme, 2008. FCEBs are exchangeable into equity share of another company, to be called the Offered Company, in any manner, either wholly, or partly or on the basis of any equity related warrants attached to debt instruments. Issuance of FCEBs shall also conform to other applicable regulations. 10)\t Foreign Equity Holder: It means (a) direct foreign equity holder with minimum 25% direct equity holding in the borrowing entity, (b) indirect equity holder with minimum indirect equity holding of 51%, or (c) group company with common overseas parent. 11)\t Infrastructure Sector: It has the same meaning as given in the Harmonised Master List of Infrastructure sub-sectors, approved by Government of India vide Notification F. No. 13\/06\/2009-INF, as amended \/ updated. For the purpose of ECB, \u201cExploration, Mining and Refinery\u201d sectors will be deemed as in the infrastructure sector. 12)\t Infrastructure Space Companies: Companies in the infrastructure sector, Non-Banking Finance Companies undertaking infrastructure financing, Holding Companies\/ Core Investment Companies undertaking infrastructure financing, Housing Finance Companies regulated by National Housing Bank and Port Trusts (constituted under the Major Port Trusts Act, 1963 or Indian Ports Act, 1908).","243 13)\t IOSCO Compliant Country: A country whose securities market regulator is a signatory to the International Organisation of Securities Commission\u2019s (IOSCO\u2019s) Multilateral Memorandum of Understanding or a signatory to bilateral Memorandum of Understanding with the SEBI for information sharing arrangements. 14)\t Real Estate Activities: Any real estate activity involving own or leased property, for buying, selling and renting of commercial and residential properties or land and also includes activities either on a fee or contract basis assigning real estate agents for intermediating in buying, selling, letting or managing real estate. However, this would not include, (i) construction\/development of industrial parks\/integrated townships\/SEZ (ii) purchase\/long term leasing of industrial land as part of new project\/modernisation of expansion of existing units and (iii) any activity under \u2018infrastructure sector\u2019 definition. 15)\t Special Economic Zone & Free Trade Warehousing Zone: They shall have the same meaning as assigned to them in Special Economic Zones Act 2005, as amended from time to time. 6.3.2 External Commercial Borrowings Framework (a) Basic Approach: External Commercial Borrowings are commercial loans raised by eligible resident entities from recognised non-resident entities and should conform to a set of parameters, prescribed by RBI. This framework is not applicable to investments in Non-Convertible Debentures in India made by Registered Foreign Portfolio Investors. Lending and borrowing by Indian banks and their branches\/subsidiaries outside India is subject to prudential guidelines issued by the Department of Banking Regulation of the RBI. Further, other entities raising ECB are required to follow the sectoral\/ prudential guidelines. (b) Salient Features of the ECB Framework: ECB can be raised as - (i) FCY denominated ECB and (ii) INR denominated ECB. A. Common Parameters for FCY and INR denominated ECBs i)\t Recognised lenders: Resident of FATF or IOSCO compliant country (even on transfer of ECB). Including - a)\t Multilateral and Regional Financial Institutions where India is a member country; b)\t Individuals - if they are foreign equity holders or if they subscribe to bonds\/ debentures listed abroad; c)\t Foreign branches\/ subsidiaries of Indian banks - only for FCY ECB (except FCCBs and FCEBs). Subject to applicable prudential norms, they can participate as arrangers\/ underwriters\/ market-makers\/ traders for INR Bonds issued overseas.","244 Underwriting by foreign branches\/subsidiaries of Indian banks for issuances by Indian banks is not allowed. ii)\t Minimum Average Maturity Period (MAMP) \u20133 years (Call and put options cannot be exercised prior to this period.) MAMP for specific categories are as follows \u2013 a)\t By manufacturing companies (up to USD 50 mn or its equivalent per financial year) \u2013 1 year (These can also be raised from foreign branches\/ subsidiaries of Indian banks.) b)\t From foreign equity holder for working capital\/ general corporate purposes or for repayment of Rupee loans \u2013 5 years c)\t (i) For working capital\/ general corporate purposes; (ii) For repayment of domestic Rupee loans for other than capital expenditure; and (ii) For on-lending by NBFCs for these purposes \u2013 10 years d)\t (i) For repayment of domestic Rupee loans for capital expenditure; (ii) For on- lending by NBFCs for this purpose - 7 years \t (ECB cannot be raised from foreign branches \/ subsidiaries of Indian banks, except where indicated.) iii)\t Other costs - Prepayment charge\/ Penal interest, if any, for default or breach of covenants, should not be more than 2 % over and above the contracted rate of interest on the outstanding principal amount and will be outside the all-in-cost ceiling. iv)\t End-uses (Negative list) - The negative list, for which the ECB proceeds cannot be utilised, would include the following: a)\t Real estate activities. b)\t Investment in capital market. c)\t Equity investment. d)\t Working capital purposes, except in case of ECB mentioned at ii (b) and ii (c) above. e)\t General corporate purposes, except in case of ECB mentioned at ii (b) and ii (c) above. f)\t Repayment of Rupee loans, except in case of ECB mentioned at ii (c) and ii (d) above. g)\t On-lending to entities for the above activities, except in case of ECB raised by NBFCs as given at ii (c) and ii (d) above.","245 B. FCY denominated ECB i)\t Currency of borrowing - Any freely convertible Foreign Currency ii)\t Forms of ECB - Loans including bank loans; floating\/ fixed rate notes\/ bonds\/ debentures (other than fully and compulsorily convertible instruments); Trade credits beyond 3 years; FCCBs; FCEBs and Financial Lease. iii)\t Eligible borrowers - All entities eligible to receive FDI. Further, the following entities are also eligible to raise ECB: i. Port Trusts; ii. Units in SEZ; iii. SIDBI; and iv. EXIM Bank of India. iv)\t All-in-cost ceiling per annum \u2013 (i) Benchmark Rate plus 550 bps spread: For existing ECBs linked to LIBOR whose benchmarks are changed to ARR. (ii) Benchmark rate plus 500 bps spread: For new ECBs. v)\t Exchange rate - Change of FCY ECB into INR ECB can be at the exchange rate prevailing on the date of the agreement for such change or at a lower exchange rate if consented to by the ECB lender. vi)\t Hedging provision - The entities should follow guidelines for hedging issued by the concerned sectoral or prudential regulator. Infrastructure space companies shall have a Board approved risk management policy; and must mandatorily hedge 70% of their ECB exposure in case the average maturity of the ECB is less than 5 years. Designated AD bank must monitor this aspect. An ECB may be considered naturally hedged only if the offsetting exposure has the maturity\/cash flow within the same accounting year. vii)\t Change of currency of borrowing - Change from one freely convertible foreign currency to any other freely convertible foreign currency as well as to INR is freely permitted. C. INR denominated ECB i)\t Currency of borrowing - Indian Rupee (INR) ii)\t Forms of ECB - Loans including bank loans; floating\/ fixed rate notes\/bonds\/ debentures\/ preference shares (other than fully and compulsorily convertible instruments); Trade credits beyond 3 years; and Financial Lease. Also, plain vanilla Rupee denominated bonds issued overseas, which can be either placed privately or listed on exchanges as per host country regulations. iii)\t Eligible borrowers - a) All entities eligible to raise FCY ECB; and b) Registered entities engaged in micro-finance activities, viz., registered Not for Profit companies, registered societies\/trusts\/ cooperatives and Non-Government Organisations. iv)\t All-in-cost ceiling per annum - Benchmark rate plus 450 bps spread.","246 v)\t Exchange rate - For conversion to Rupee, the exchange rate shall be the rate prevailing on the date of settlement. vi)\t Hedging provision - Overseas investors are eligible to hedge their exposure in Rupee through (i) permitted derivative products with AD banks in India; (ii) through branches \/ subsidiaries of Indian banks abroad; or (iii) branches of foreign banks with Indian presence on a back to back basis. vii)\t Change of currency of borrowing - It is not permitted. D. Exclusions (i)\t The ECB framework is not applicable in respect of investments in Non-Convertible Debentures in India made by Registered Foreign Portfolio Investors. (ii)\t Lending and borrowing under the ECB framework by Indian banks and their branches\/ subsidiaries outside India will be subject to prudential guidelines issued by the Department of Banking Regulation of the Reserve Bank. Further, other entities raising ECB are required to follow the guidelines issued, if any, by the concerned sectoral or prudential regulator. (c) Limit and Leverage of ECB: i)\t All eligible borrowers can raise ECB up to USD 750 million or equivalent per financial year under the automatic route. ii)\t Under the automatic route, for FCY denominated ECB from direct foreign equity holder, ECB liability-equity ratio cannot exceed 7:1, if outstandings under all ECBs (including the proposed one) is USD 5 million or its equivalent. Guidelines on debt equity ratio by the sectoral or prudential regulator concerned also apply. iii)\t Restrictions on issuance of Guarantee, etc. by Indian banks and Financial Institutions and NBFCs: Issuance of guarantee relating to ECB is not permitted. Investment in FCCBs\/ FCEBs by them is not permitted. (d) Parking of ECB Proceeds: i)\t Entire ECB proceeds may not be required for deployment immediately, requiring parking of the disbursed funds. ECB proceeds can be parked abroad as well as domestically as specified: ii)\t Parking abroad: ECB proceeds meant only for foreign currency expenditure can be parked abroad pending utilisation. Till utilisation, these funds can be invested in specified liquid assets. iii)\t Parking domestically: ECB proceeds for Rupee expenditure should be repatriated immediately to India, and can be parked in unencumbered term deposits with AD bank maximum up to 12 months cumulatively.","247 (e) Procedure of raising ECB: i)\t All ECBs conforming the prescribed framework fully can be raised under the Automatic Route. ii)\t For approval route cases, the borrowers may approach the RBI through their AD bank. These are considered keeping in view the overall guidelines, macroeconomic situation and merits. (f) Operational Aspects 1)\t Loan Registration Number (LRN): To obtain LRN, borrowers are required to submit duly certified Form ECB, also containing terms and conditions of the ECB to the designated AD bank, which submits one copy to RBI. Any draw-down should happen only after obtaining the LRN. 2)\t Changes in terms and conditions: Changes in ECB parameters, including reduced repayment by mutual agreement should be reported to RBI. 3)\t Monthly Reporting of actual transactions: Actual transactions to be reported on monthly basis. Changes, in parameters should also be incorporated. 4)\t Standard Operating Procedure (SOP) for Untraceable Entities: The following SOP has to be followed by designated AD banks in case of untraceable entities - i)\t Definition: Any ECB borrower is treated as \u2018untraceable entity\u2019, if entity\/ auditor(s)\/director(s)\/ promoter(s) of entity are not reachable\/responsive\/reply in negative over email\/letters\/phone for a period of not less than two quarters with 6 or more documented communications\/ reminders and if: a)\t Entity is not found to be operative at the available registered office address or not found to be operative during the visit by the officials of the AD Bank\/ or its authorised agencies; and b)\t Entities have not submitted Statutory Auditor\u2019s Certificate for last two years or more; ii)\t Actions: The followings actions are to be taken: a)\t File Revised Form ECB, if required, and last Form ECB2 Return without certification from company, and with \u2018UNTRACEABLE ENTITY\u2019 written. The outstanding amount will be treated as written-off from external debt liability of the country but may be retained by the lender in its books for recovery through judicial\/ non-judicial means; b)\t No fresh ECB application by the entity should be examined\/ processed;","248 c)\t Directorate of Enforcement should be informed whenever any entity is designated \u2018UNTRACEABLE ENTITY\u2019; and d)\t No inward remittance or debt servicing will be permitted under automatic route. 5)\t Powers delegated to AD Category I banks to deal with ECB cases: To approve requests for changes in respect of ECB, except for FCCBs\/ FCEBs. To ensure the changes comply with extant ECB norms and are with the consent of lender(s). a)\t Change of the AD bank: This is permitted subject to no objection certificate from the existing AD bank. b)\t Cancellation of LRN: The designated AD banks may directly approach RBI for cancellation of LRN, if no draw down against the said LRN has taken place and the monthly ECB-2 returns have been submitted. c)\t Refinancing of existing ECB: (1)\t Refinancing of existing ECB by fresh ECB is permitted provided \u2013 (a)\t the outstanding maturity of the original borrowing (weighted outstanding maturity in case of multiple borrowings) is not reduced, and (b)\t all-in-cost of fresh ECB is lower than the all-in-cost (weighted average cost in case of multiple borrowings) of existing ECB. (2)\t Refinancing of ECBs raised under the previous ECB frameworks is permitted, if the borrower is eligible to raise ECB under the extant framework. (3)\t Raising of fresh ECB to part refinance the existing ECB is also permitted subject to same conditions. (4)\t Indian banks are permitted to participate in refinancing of existing ECB, only for highly rated corporates (AAA) and for Maharatna\/ Navratna public sector undertakings. d)\t Conversion of ECB into equity: Conversion of ECB, including those which are matured but unpaid, into equity is permitted subject to prescribed conditions. e)\t Security for raising ECB: AD banks are permitted to allow creation\/ cancellation of charge on immovable assets, movable assets, financial securities and issue of corporate and\/or personal guarantees in favour of overseas lender \/ security trustee.","249 f)\t Additional Requirements: AD banks should ensure the following requirements. (1)\t The changes permitted, if any, are in conformity with the applicable ceilings\/ guidelines and the ECB continues to be in compliance with applicable guidelines. (2)\t If the borrower has availed of credit facilities from the Indian banking system (including foreign branches\/ subsidiaries of Indian banks), any extension of tenure of ECB (whether matured or not) shall be subject to applicable prudential RBI guidelines including guidelines on restructuring. (3)\t The changes in the terms and conditions of ECB should be reported to the DSIM (RBI). These should also get reflected in the Form ECB 2 returns appropriately. (g) Other Specific Provisions: (1)\t Special dispensation has been prescribed for ECBs to be raised by (i) Oil Marketing Companies and (ii) Start-ups. (2)\t All entities against which investigation \/ adjudication \/ appeal by the law enforcing agencies for violation of any of the provisions of the Regulations under FEMA pending, may raise ECB as per the applicable norms, if they are otherwise eligible. The borrowing entity shall inform about pendency of such investigation \/ adjudication \/ appeal to the AD bank \/ RBI. AD Banks \/ RBI while approving the proposal shall intimate the agencies concerned by endorsing a copy of the approval letter. (3)\t An entity which is under a restructuring scheme\/ corporate insolvency resolution process can raise ECB only if specifically permitted under the resolution plan. (4)\t Eligible corporate borrowers who have availed domestic Rupee loans for capital expenditure in manufacturing and infrastructure sector classified as SMA-2 or NPA can avail ECB for repayment of these loans under any one time settlement with lenders. (5)\t Eligible borrowers, participating in the Corporate Insolvency Resolution Process under Insolvency and Bankruptcy Code, 2016 as resolution applicants, can raise ECB from all recognised lenders, except foreign branches\/subsidiaries of Indian banks, for repayment of Rupee term loans of the target company. (h) Compliance Responsibility The primary responsibility for ensuring that the borrowing is in compliance with the applicable guidelines is that of the borrower. Any contravention of the applicable provisions of ECB guidelines will invite penal action under the FEMA. The designated AD bank is also expected to ensure compliance with applicable ECB guidelines by their constituents."]