RBI SAYS NO OVERSEAS FDI OR ODI IF OLD LAPSES NOT FIXED

 

RBI SAYS NO OVERSEAS FDI OR ODI IF 

OLD LAPSES NOT FIXED

The RBI  will be cracking down on corporates with unresolved ODI of FDI violations, setting an August 25, 2025 deadline.

NON-RECTIFICATION PAST LAPSES

Companies failing to rectify past lapses face compounding or adjudication before making further foreign financial commitments.

FACE ADJUDICATION BY THE ENFORCEMENT DIRECTORATE

In an email sent in late April, the RBI instructed bank compliance heads to notify all corporate clients that failure to rectify past lapses by August 25, 2025, would require them to either undergo the compounding process or face adjudication by the Enforcement Directorate before making any further foreign financial commitments, according to banking industry sources.

WHAT ARE THE UNREPORTED  ODIs

·      Incorporating an offshore subsidiary company

·      Acquiring a stake in an unlisted foreign company

·      Acquiring in excess of 10% of any foreign listed company

·      Extending loans  or guarantee to a foreign company

At present  an company Indian company can invest as ODI 4 times of its net-worth.

Contraventions pertain to a company’s failure to disclose financial details of earlier ODIs either inadvertently or due to lack compliance.

Now companies have to rectify past lapses by August 25, 2025 else they can not make any further ODI investments.

R V Seckar FCS , LLB 79047 19295

RBI CAPS FEMA VIOLATION PENALTY AT RS 2 LAKH TO SIMPLIFY COMPLIANCE BURDEN

 RBI CAPS FEMA VIOLATION PENALTY AT

 RS2 LAKH TO SIMPLIFY COMPLIANCE

 BURDEN

 RBI CAPS FEMA VIOLATION PENALTY AT RS 2 LAKH TO SIMPLIFY COMPLIANCE BURDEN

PENALTY FOR FEMA VIOLATIONS NOW

 CAPPED -RBI

RBI has capped the penalty amount for FEMA violations to Rs 2 lakh, down from a percentage of the amount of violations earlier in an easing of regulations. Violations including

·       use of liberalised remittance scheme (LRS) proceeds not reinvested within 180 days,

·       exports not made within one year of advance receipt

·       and gifting high value shares without RBI permission will now be penalised to a maximum of Rs 2 lakhs versus 0.30% to 0.75% of the violation amount earlier.

AMENDMENT TO MASTER CIRCULAR BY RBI

The changes were made in the master directions on FEMA by RBI on Thursday. “…based on the nature of contravention, exceptional circumstances/ facts involved in case, and in wider public interest, the maximum compounding amount imposed may be capped at Rs 2 lakh for contravention of each regulation/ rule (applied in a compounding application)…” RBi said.

FEMA rules prevents for example

·       Foreign property to be bought on a mortgage abroad,

·       Overseas direct investment (ODI) sale without a valuation report

·       or ODI sale proceeds not repatriated within 90 days,

·        resident Indians gifting high value shares to non-resident relatives without RBI permission

·       and agricultural property purchases by NRIs.

“Rationalization of the penalty amount would significantly ease the burden on individuals and corporations involved in high-value contraventions.

Key Highlights of the New FEMA Penalty Framework

Penalty Cap: The maximum penalty for any FEMA contravention has been capped at ₹2 lakh.

Reporting Contraventions: For reporting-related violations, such as non-submission or delayed submission of forms like FCGPR, FLA Returns, or APR, the penalty structure is as follows:

Fixed Amount: ₹10,000 per contravention.

Variable Amount: Calculated based on the amount involved and the duration of the contravention.

Ceiling: The total penalty is subject to a ceiling of ₹2 lakh.

Project Offices: For Project Offices, the penalty is calculated at 10% of the total project cost.

Non-Reporting Contraventions: For other violations, such as non-allotment of shares or contraventions by Liaison Offices (LO), Branch Offices (BO), or Project Offices (PO), the penalty includes:

Fixed Amount: ₹30,000 per contravention.

Variable Amount: A percentage of the amount under contravention, varying based on the duration of the contravention.

Ceiling: The total penalty is subject to a ceiling of ₹2 lakh.

Benefits of the Revised Framework

Simplified Compliance: The cap on penalties reduces the financial uncertainty for businesses, making it easier to comply with FEMA regulations.

Encouragement for Voluntary Compliance: The predictable penalty structure encourages businesses to voluntarily rectify violations without prolonged litigation.

Streamlined Procedures: The revised framework aims to expedite the compounding process, reducing administrative delays.

These changes are part of the government's broader initiative to ease the compliance burden on businesses and promote a more investor-friendly environment.

If you require assistance in calculating potential penalties for specific contraventions or need guidance on the compounding process, feel free to ask.

Courtesy: ECONOMIC TIMES

R V SECKAR FCS,LLB 79047 19295

HOW CAN INDIAN RESIDENTS ACQUIRE FOREIGN ASSETS THROUGH GIFT CITY , AHAMADABAD UNDER LRS SCHEME AND GIFT CITY FACILITATES ALL FINANCIAL TRANSACTIONS IN INDIA USING FOREIGN CURRENCY TO NON-RESIDENTS

 HOW CAN INDIAN RESIDENTS ACQUIRE FOREIGN ASSETS THROUGH GIFT CITY , AHAMADABAD UNDER LRS SCHEME AND GIFT CITY FACILITATES ALL FINANCIAL TRANSACTIONS IN INDIA USING FOREIGN CURRENCY TO NON-RESIDENTS

WHAT IS GIFT CITY?

GIFT City is short for GUJARAT INTERNATIONAL FINANCE TEC-CITY. Situated close to Ahmedabad, GIFT City facilitates all financial transactions in India using foreign currency (not Indian rupees).

Though it is located within India, it is considered a jurisdiction separate from the rest of India.

INTERNATIONAL FINANCIAL SERVICES CENTRES (IFSC)

Countries aspire for other countries to conduct international transactions within their borders because it can fuel economic growth and bring foreign capital into the country. So, some countries set up International Financial Services Centres (IFSC) within their territory, facilitating such transactions.

DUBAI INTERNATIONAL FINANCIAL CENTRE

One that is close to us and widely known is DIFC – Dubai International Financial Centre. GIFT City is India’s first IFSC centre.

TAX ADVANTAGES

NRIs can invest in foreign currencies without converting to Indian rupees. Numerous tax advantages are also given to such investments to attract more investors and capital.

WHAT ARE THE BENEFITS OF TRADING/INVESTING IN GIFT CITY?

The central government has exempted capital gain tax on the transfer of the following securities listed on a recognized stock exchange located in IFSC for non-residents – 

(i)                      Foreign currency-denominated equity share of a company; 

(ii)                    Foreign currency-denominated bond;

(iii)                 Bullion depository receipt;

(iv)                 Unit of investment trust; (v) unit of a scheme;

(v)                    Unit of an Exchange Traded Fund launched under IFSCA FME Regulations, 2022.

·      Exemption from requirement to obtain PANS by certain non-residents who qualify as foreign investors, subject to fulfilment of certain conditions.

·      Exemption from stamp duty for transactions carried out on the IFSC exchanges.

·      Exemption from commodities transaction tax and securities transaction tax in respect of transactions carried out on the IFSC exchanges.

RESIDENTS CAN INVEST IN FOREIGN STOCKS

While there are no tax benefits specifically for Indian residents, it allows investment in foreign stocks or Unsponsored Depository Receipts (representing foreign shares) that are being traded on the exchange in the GIFT City.

DECLARATION BY RESIDENTS FOR INVESTMENT IN FOREIGN SHARES OR INVESTMENTS

Schedule FA section of the Income Tax Return (ITR) form requires residents and ordinary residents to disclose details of any beneficial interests held in foreign bank accounts or other overseas investments.

NON-DISCLOSURE ATTRACTS PENALTY

Non-disclosure or incorrect reporting of foreign assets can attract severe penalties under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, with fines going up to ₹10 lakh.

INDIAN RESIIDENTS CAN INVEST IN FOREIGN STOCK UP TO $250000 PER ANNUM IN FOREIGN ASSETS OR FOREIGN STOCKS THROUGH LRS SCHEME.

IFSCA has provided much-needed clarity on operational aspects for opening bank accounts in GIFT IFSC under the LRS route through various circulars. Accordingly, remittances under the LRS route to GIFT IFSC are likely to pick up and therefore, disclosure requirements under Schedule FA need to be carefully evaluated. While the regulations are still evolving, it’s crucial to tread carefully and seek professional advice.

R V Seckar FCS, LLB

79047 19295

rvsekar2007@gmail.com

NRI’s Rupees 3 crores gift to his mother is genuine, not taxable and cannot be treated as unexplained cash credit under Section 68 of the I-T Act – Held ITA Tribunal

 

NRI’s Rupees 3 crores gift to his mother is

 genuine, not taxable and cannot be treated as

 unexplained cash credit under Section 68 of the

 I-T Act – Held ITA Tribunal

NOT A CIRCULAR TRADING TRANSACTION

The Mumbai ITAT ruled in favor of a taxpayer who received a ₹3 crore gift from her NRI son. The I-T department questioned the gift's legitimacy, alleging a circular trading transaction, but the tribunal upheld the gift's validity due to  the son's proven financial capacity and dismissed the circular trading claim by ITO.

The gift is from a NRI son, who is a prominent hedge fund operator based in Hong Kong.

The IT officer sought to tax this sum in the hands of the mother.

GIFTS EXCEEDING RS 50,000 ARE TAXABLE

Under the I-T Act, gifts exceeding Rs 50,000—barring for events such as marriage are generally taxed in the hands of the recipient at the applicable slab rates under the head ‘Income from Other Sources'.

GIFTS MADE TO CLOSE RELATIVES ARE NOT TAXABLE IN THE HANDS OF THE RECIPIENT

However , gifts made to close relatives are not taxable in the hands of the recipient.

UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE I-T ACT

I-T officer treated the Rs 3 crore received by the mother as unexplained cash credit under Section 68 of the I-T Act and sought to tax it in her hands. Tax laws prescribe for a higher rate of 60% (plus cess and surcharge) on sums classified as  unexplained cash credit.

This action by the I-T officer was dismissed by the commissioner (appeals), but the I-T department went ahead and filed an appeal with the ITAT.

A COLOURABLE DEVICE

As per IT department a subsequent grant of an unsecured loan given by the mother to an Indian company was a colourable device to invest in the Indian security market—it was a circular trading transaction .

GIFT RECEIVED AND RETURNED BACK

The gift amount was received in 2010-11 and in 2012-13, this sum was returned to her son.

ITAT viewed that "The actions of the recipient (mother) of investing the gift amount in an Indian company and subsequently returning the funds to her son are unrelated to the issue of addition under Section 68."

 EARLIER RULINGS ON GIFTS RECEIVED

·      This ruling follows a similar August 2024 decision, where the Mumbai ITAT held that a Rs 20 lakh gift from a UAE-based NRI to his sibling in India was not taxable.

·      GIFT RECEIVED FROM NRI BROTHER CAN BE EXCLUDED FROM TAXATION AND NOT TAXABLE : INCOME TAX APPELLATE TRIBUNAL

https://rvseckarfema.blogspot.com/2024/08/gift-received-from-nri-brother-can-be.html

KEY HIGHLIGHTS ON UPDATE IN RBI MASTER DIRECTIONS FOR OVERSEAS INVESTMENS (OI) BY INDIVIDUALS UNDER FEMA

 

KEY HIGHLIGHTS ON UPDATE IN RBI

 MASTER DIRECTIONS FOR OVERSEAS

 INVESTMENS (OI) BY INDIVIDUALS

 UNDER FEMA

https://www.linkedin.com/pulse/key-highlights-update-rbi-master-directions-overseas-oi-r-v-seckar-jvf1c/

Courtesy : Greenlife

R V Seckar , FCS , 79047 19295  

rvsekar2007@gmail.com

FEMA :- NRE and NRO Account Guide

 FEMA :- NRE and NRO Account Guide

   https://www.linkedin.com/pulse/fema-nre-nro-account-guide-r-v-seckar-ggcoc/

1) NRE Account is rupee denominated account, funds deposited in it must originate from foreign sources.

2) NRP Account is rupee denominated account, funds can be deposited from foreign sources and India.

3) NRO accounts are restrictive in nature

.4) Many NRI open NRO account even if they have NRE account, they do no use it often and they do in piecemeal.

5) To transfer the money from an NRO to an NRE account or to a foreign account, NRI need documentary proof of the source of funds being used for repatriation. They need to fill in form 15CA.

6) Some transactions require form 15CB and CA certificate. In many cases, only form 15CA is needed. If 15CA Part A, B or D is provided, it does not require Form 15CB or CA certificate.Form 15CB is required only in the case of Form 15CA part C

.Source: Hindustan Times

SEBI STUDY UNCOVERS ALARMING TRENDS IN ROYALTY PAYMENTS BY LISTED COMPANIES- EVEN LOSS MAKING COMPANIES ARE ALLOWED TO PAY ROYALTIES

 SEBI STUDY UNCOVERS ALARMING TRENDS IN ROYALTY PAYMENTS BY LISTED COMPANIES- EVEN LOSS MAKING COMPANIES ARE ALLOWED TO PAY ROYALTIES

ROYALTY AND FOREIGN TECHNICAL COLLABORATION PAYMENT

Royalty and Foreign Technical collaboration payment are governed by the RBI circular AP ( DIR Series) Circular No 5 dated 21 July 2003.

LIBERALIZED  THE FOREIGN TECHNOLOGY COLLABORATION AGREEMENT POLICY

Under  liberalized  the foreign technology collaboration agreement policy through Press Note No 2 (2003 Series) dated 24 -06-2003 , irrespective of who have entered into foreign technology collaboration agreements were  permitted on the automatic approval route to make royalty payments at 8% on exports and 5% on domestic sales without any restriction on the duration of royalty payments.

AUTOMATIC ROUTE:

The Government of India has reviewed the extant policy vide the press note no 8 (2009  series ) dated 16th December 2009 and it has been decided to permit, with immediate effect, payments for royalty, lumpsum fee for transfer of technology and payments for use of trademark/brand name on the automatic route without any limit as stated in the following table  i.e. without any approval of the Government of India. All such payments will be subject to Foreign Exchange Management (Current Account Transactions) Rules, 2000 as amended from time to time.

With effect from16-12.2009,  after issue of Press Note 8 (2009 series)

For more details , please visit the following link:

https://rvseckarfema.blogspot.com/2011/02/foreign-technology-colloborations.html

ROYALTY PAYMENTS EVEN BY LOSS MAKING COMPANIES

In one out of four times, listed entities paid royalties exceeding 20% of their net profits to related parties.

And 185 instances of royalty payments were by companies that made losses.

SEBI Study found that some listed companies dolled out more than 20 per cent of their net profits as royalty to related parties.

SEBI study analysed 233 listed companies over a period of ten years, starting from financial year 2014 (FY14).

LESS THAN 5% AND MORE THAN 5%

SEBI study found 1,538 instances of royalty payments (RPs) below the approval requirement threshold, which is set at 5 per cent of the turnover.

Royalty payments of more than 5 per cent of the turnover must be ratified by majority of minority shareholders.

The cumulative 185 royalty payments by 63 loss-making companies amounted to Rs 1,355 crore.

SKIPPING OF DIVIDEND PAYMENT

Further, one out of two times, listed companies that paid royalty, did not pay dividend or paid more royalty to RPs than dividend paid to non-RP shareholders, the study revealed.

POOR DISCLOSURE LEVELS, UNFAIR PAYOUTS

SEBI’s study throws a light on poor disclosure levels, unfair payouts and unjustified payments for brand usage and technology know-how by these companies.

“In case of MNCs, shareholders of the Indian subsidiary have little information on the rates of royalty being charged from fellow subsidiaries in other geographies,” SEBI study said.

NO ADEQUATE DISCLOSURES IN ANNUAL REPORT

The SEBI study stated, "It has been observed that many of the companies are disclosing the royalty payment just as an item under the statement of transactions with RPs in the Annual Report, with no details being provided with respect to the rationale and rate of such royalty paid."

NON-DISCLOSURE OF PERIOD OF ROYALTY PAYMENTS

The SEBI study stated that the companies seeking approval of shareholders with respect to royalty payments, are not disclosing period or tenure of approval of such transactions. This is suggestive of the company seeking a perpetual approval for transactions."

ROYALTY PAYMENTS IN EXCESS OF 20% OF NET PROFITS

When analyzing consistent royalty payers, of which there were 79 companies, the study found that eleven out of them consistently paid royalty exceeding 20% of net profits during all the 10 years.

MY VIEWS:

·      Government should ban the loss making companies to pay royalties as it will diminish the forex reserves of the nation. Only profit making companies should be allowed to pay royalties.

·      In Directors Report , there should be a report on royalty paid , rate of royalty paid , turnover on which royalty paid so that shareholders will come to know the details about the royalties paid.

·      Audit committee should thoroughly scrutinize the amount of royalty paid, the justification for the payment .

Courtesy : SEBI STUDY REPORT

R V SECKAR, FCS 4075, 7904719295