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OVERVIEW OF FEMA

INTENSIVE STUDY COUSRE ON FEMA –THE CHAMBER OF TAX CONSULTANTS

15th December, 2017

By:CA Manoj Shahe-mail :[email protected]

CHARTERED ACCOUNTANTS

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Transition from Foreign Exchange Regulation Act,1973 to Foreign Exchange Management Act, 1999

Post liberalization (i.e. New Industrial policy of 1991) therewas need to remove shackles of regulatory and legalprovisions.

Need to consolidate and amend the law relating to foreignexchange with the objectives of facilitating external trade andpayments and for promoting the orderly development andmaintenance of foreign exchange market in India.

Need to take various steps to make ‘New Industrial Policy’-workable and meaningful.

Industrial licensing was made pragmatic and objective-oriented.

It was decided to review provisions of Foreign ExchangeRegulation Act, 1973 (FERA).


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Transition from Foreign Exchange Regulation Act,1973 to Foreign Exchange Management Act, 1999

Intention was to bring provisions of FERA in line withemerging trends of liberalization so as to remove obstacles inthe inward flow of foreign exchange and foreign investment.

Accordingly, on June 1, 2000, the Foreign ExchangeManagement Act, 1999 (FEMA) brought in force to replacethe then existing FERA.

It is an act to manage the foreign exchange of India asopposed to FERA which was enacted to regulate/control theforeign exchange.


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Structure of FEMA

Applies to the whole of India and all branches, offices andagencies outside India which are owned or controlled by aperson resident in India.

FEMA has 49 sections of which 9 (section 1 to 9) aresubstantive and the rest are procedural/ administrative

Section 46 of FEMA grants power to Central Governmentto make rules to carry out the provision of FEMA

Section 47 of FEMA grants power to RBI to makeregulations to implement its provisions and the rules madethere under

RBI is entrusted with the administration andimplementation of FEMA


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Substantive Provisions

Section Description

1 Application and Commencement of FEMA

2 Definitions

3 to 9Provisions relating to Regulations and Management ofForeign Exchange

10 to 12 Provisions relating to Authorized Person

13 to 15 Provisions relating to Contraventions and Penalties

16 to 38Provisions relating to Adjudication, Appeal andDirectorate of Enforcement

39 to 49 Miscellaneous Provisions


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Rationalization of FEMA Notifications

FEMA was enacted with 25 original notifications in 1999 andover years had more than 360 amendments.

A need was felt to consolidate the regulations and rationalizethem.

Accordingly, RBI has started revising regulations issuedunder FEMA. Consequently on issue of revised regulationsoriginal notifications and subsequent amendments standrepealed.

Revised regulations carry the same numbers as in the oldregulations with a suffix ‘(R)’ along with the year in whichthey are published.

Till date 12 notifications are revised. [5(R), 6(R), 7(R), 9(R),10(R), 11(R), 12(R), 13(R), 14(R), 15(R), 18(R), 20(R), 22(R) and23(R)]


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Master Directions

RBI has come up with Master Directions covering foreignexchange transactions.

Master Directions consolidate instructions rules andregulations.

One Master Direction is issued for each subject mattercovering all instructions on the subject.

Master Directions are updated as and when there is change inrules/regulations or change in policy.

Existing set of Master Circulars stand withdrawn with issueof Master Directions.

https://www.rbi.org.in/scripts/FS_Notification.aspx?fn=5&fnn=2764

https://www.rbi.org.in/scripts/FS_Notification.aspx?fn=5&fnn=2764


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A.P. (Dir Series) Circulars and Master Directions

Directions issued by RBI u/s. 10(4) and 11(1) of FEMA toAuthorized Persons (AP)

These directions are called – A.P. (Dir Series) Circulars

APs are Authorized Dealers, Money Changers and banks whoare authorized to deal in Foreign Exchange

These Circulars are operational instructions to AP by RBI

Legal validity of these Circulars have been upheld in the case ofProf. Krishnaraj Goswami v. RBI, [2007 (6) Bom. CR 565]

Court upheld the power of RBI to issue such Circulars based onpowers conferred to RBI u/s. 10(4) & 11(1) & negated thecontention that RBI has no jurisdiction to issue such Circulars

Master Directions have been issued on 1st January 2016subsuming the position as on date and consolidating all theexisting changes (subject wise) and thereafter the same areregularly updated.


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Some of the important definitions

Foreign Exchange [Sec 2(n)] –foreign exchange means foreign currency and includes –i. deposits, credits and balances payable in any foreign currency,

ii. Drafts, traveller’s cheques, letter of credit or bills of exchange,expressed or drawn in Indian currency but payable in any foreigncurrency.

iii. Draft, travellers cheques, letters of credit or bills of exchange drawnby banks, institutions or persons outside India, but payable inIndian currency.

Foreign Security [Sec 2(o)] –foreign security means any security, in the form of shares, stocks, bonds,debentures or any other instrument denominated or expressed in foreigncurrency and includes securities expressed in foreign currency, but whereredemption or any form of return as such interest or dividends is payablein Indian currency.


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Repatriate to India [Sec 2(y)] –Repatriate to India means bringing into India the realisedforeign exchange and –i. the selling of such foreign exchange to an authorised

person in India in exchange for rupees, or

ii.the holding of realized amount in an account with anauthorized person in India to the extent notified by thereserve Bank

and includes use of the realised amount for discharge of adebt or a liability denominated in foreign exchange and theexpression “repatriation” shall be construed accordingly.

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‘Repatriation outside India’ means buying ordrawing of foreign exchange from an authorized dealer inIndia and remitting it outside India through normalbanking channels or crediting it to an account denominatedin foreign currency or to an account in Indian currencymaintained with an authorized dealer from which it can beconverted in foreign currency. [Regulation 2(d) ofNotification No. 21]

Transfer [Sec 2(ze)] - includes sale, purchase, exchange,mortgage, pledge, gift, loan or any other form of transfer ofright, title, possession or lien

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FEMA Notification No. 5(R) – Foreign ExchangeManagement (Deposit) Regulations, 2016Person of Indian Origin (PIO) means a person resident outside Indiawho is a citizen of any country other than Bangladesh or Pakistanor such country as may be specified by the Central Government,satisfying following conditions:a. Who was a citizen of India by virtue of the constitution of India or the

Citizenship Act, 1955 (57 of 1955); or

b. Who belonged to a territory that became part of India after 15th Day ofAugust 1947; or

c. Who is a child or a grandchild or a great grandchild of a citizen ofIndia or of a person referred to in clause (a) or (b); or

d. Who is a spouse of foreign origin of a citizen of India or spouse offoreign origin of a person referred to in clause (a) or (b) or (c)

(Person of Indian Origin includes Overseas Citizen of Indiacardholder within meaning of Section 7(A) of the Citizenship Act,1955)12

Definition of Person of Indian Origin (PIO) under various Notifications


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FEMA Notification No. 13(R) – Foreign Exchange Management(Remittance of Assets) Regulations, 2016

Person of Indian Origin (PIO) shall have same meaning assigned underForeign Exchange Management (Deposit) regulations, 2000

FEMA Notification No. 21 – Foreign Exchange Management (Acquisitionand Transfer of Immovable Property in India) Regulations, 2000

Person of Indian Origin (PIO) means an individual (not being a citizen ofPakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran orNepal or Bhutan), who

a. at any time held India Passport, or

b. Who or either of whose father or mother or whose grandfather orgrandmother was a citizen of India by virtue of the Constitution ofIndia or Citizenship Act, 1955 (57 of 1955) or

(Note: Macau and Hong Kong are not added in definition of PIO, but personscitizens of these two countries are prohibited from acquiring or transferringimmovable property in India- Regulation 7 of Notification No.21)-

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FEMA Notification No. 24 – Foreign ExchangeManagement (Investment in Firm or Proprietary Concern)Regulations, 2000

Person of Indian Origin (PIO) means a citizen of anycountry other than Bangladesh or Pakistan or Sri Lanka, if

a. He at any time held India Passport, or

b. He or either of his parents or any of his grandparentswas a citizen of India by virtue of the Constitution ofIndia or Citizenship Act, 1955 (57 of 1955) or

c. The person is a spouse of an Indian citizen or a personreferred to in sub-clause (a) or (b).

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Residential Status under FEMA

Under FEMA residential status is of two types: Person resident in India

Person resident outside India

Under FERA, citizenship was considered as decidingfactor

FEMA lays emphasis on 'residing' which denotespermanency


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Purpose under FEMA is different as compared to Income Tax

Under Income Tax, issue is of taxability of income which isdetermined for the full year, therefore number of days concepthas been adopted under Income Tax

Whereas under FEMA regulations are there for undertakingtransaction itself, therefore clarity on status at the time ofundertaking transaction is a must

Though FEMA also uses the concept of number of days stay (ofmore than 182 days but of preceding financial year) but

importance is given to intention of going out of India foremployment, business or intention to stay outside India foruncertain period


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PERSON RESIDENT IN INDIA [Sec. 2(v)(i) of FEMA]:

Residing in India for > 182 days during the course of preceding F.Y.but doesn’t include

going out of India or staying outside India

for taking up employment

for carrying business or vocation

for any other purpose in such circumstances as would indicatehis intention to stay outside India for uncertain period

coming to India or staying in India otherwise than

for taking up employment

for carrying business or vocation

for any other purpose in such circumstances as would indicatehis intention to stay in India for uncertain period

PERSON RESIDENT OUTSIDE INDIA[Sec. 2(w) of FEMA]: aperson who is not resident in India.

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Person to be resident in India, has to reside in India for morethan 182 days during the previous financial year

Exclusion to this is - if a person stays outside India foremployment, for vocation or for any other purpose foruncertain period, then even if he has resided in India for morethan 182 days he will become a ‘person resident outside India’

Moreover a person to be treated as person resident in India hehas to satisfy not only the condition of period of stay (i.e. 182days) but has to also comply with the conditions of the'purpose' of stay i.e. for taking up employment, carrying onbusiness or vocation in India or for any other purpose whichwould indicate his intention to stay in India for an uncertainperiod

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RBI may ignore the arithmetic condition (i.e. of 182 days) andtreat the person who comes to or stays in India for any of thethree purposes set out in section 2(v)(i)(B) as ‘person residentin India’ even though he may not have resided in India for aperiod of 182 days or more during the preceding financialyear. However legal tenability of such a view cannot be saidto be free from doubt.

RBI has a very narrow approach towards non residentacquiring immovable property in India. It gives a weightedsignificance to the arithmetic condition of staying in India formore than 182 days during the preceding financial year.

RBI does not determine the residential status. Under FEMA,residential status is determined by operation of law. Theonus is on an individual to prove his / her residential status,if questioned by any authority.



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Residential Status under FEMA –Indian Students Studying Abroad

A.P. (DIR Series) Circular No. 45 dated December 8, 2003

While taking up studies, students may have to take upjob or seek scholarships to supplement their income. As aresult their stay gets prolonged than what is intendedwhile leaving India.

They are not dependent for a dominant part of theirexpenses on remittances from their households in India.

Hence, their stay will be for more than 182 days and intentionwill also be to stay outside India for uncertain period. Thusthey can be treated as Non Resident Indians (NRI).

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Current and Capital Account TransactionDefinitions

Capital Account transactionmeans a transaction which altersassets or liabilities includingcontingent liabilities, outsideIndia of person resident in Indiaor assets and liabilities in India ofpersons resident outside India.

It’s an economic definition ratherthan an accounting or legaldefinition.

Current Account transaction istransaction other than a capitalaccount transaction and generallyincludes:a. Payments due in connection with

foreign trade, Short term bankingand credit facilities.

b. Payment due as interest on loanand income from investment.

c. Remittances for living expensesof parent, spouse and childrenresiding abroad.

d. Expenses in connection withforeign travel, education andmedical care of parents, spouseand children


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Capital Account Transaction –FEMA Notification No. 1

Schedule I [Regulation 3(1)(A)]: Classes of capital accounttransactions of persons resident in Indiaa) Investment by a person resident in India in foreign securities

b) Foreign currency loans raised in India and abroad by aperson resident in India

c) Transfer of immovable property outside India by a personresident in India

d) Guarantees issued by a person resident in India in favour of aperson resident outside India

e) Export, import and holding of currency/currency notes

f) Loans and overdrafts (borrowings) by a person resident inIndia from a person resident outside India


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Capital Account Transaction –FEMA Notification No. 1 Contd…

g) Maintenance of foreign currency accounts in India andoutside India by a person resident in India

h) Taking out of insurance policy by a person resident in Indiafrom an insurance company outside India.

i) Loans and overdrafts by a person resident in India to aperson resident outside India.

j) Remittance outside India of capital assets of a person residentin India.

k) Sale and purchase of foreign exchange derivatives in Indiaand abroad and commodity derivatives abroad by a personresident in India.


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Schedule II [Regulation 3(1)(B)]: Classes of capital accounttransactions of persons resident outside India.a) Investment in India by a person resident outside India, that is

to say,i. Issue of security by a body corporate or an entity in India

and investment therein by a person resident outside India;&

ii. Investment by way of contribution by a person residentoutside India to the capital of a firm or a proprietorshipconcern or an association of persons in India.

b) Acquisition and transfer of immovable property in India by aperson resident outside India.

c) Guarantee by a person resident outside India in favour of, oron behalf of, a person resident in India.


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d) Import and export of currency/currency notes into/from Indiaby a person resident outside India.

e) Deposits between a person resident in India and a personresident outside India.

f) Foreign currency accounts in India of a person resident outsideIndia.

g) Remittance outside India of capital assets in India of a personresident outside India.


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Cap A/c Transaction and Contingent liability of a person resident outside

India

The definition of Cap A/c Transaction does not include contingentliability of a person resident outside India. However, Schedule II toNotification 1 includes in the list of capital account transaction-

Guarantee given by a person resident outside India to any personresident in India though in the nature of Cap A/c Transaction byvirtue of Sch II to Not. 1. However, such guarantee does notrequire any reporting.

In case the guarantee is invoked and the NR guarantor has to paythe resident creditor the same amount can be reimbursed byresident to the rupee equivalent of the amount paid by the NRguarantor. (Reference - FEMA Notification 16/2000 ). Thisprovision is also to give relief to resident out of rigours of 3(b).

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Contingent Assets whether Capital Account or Current Account transaction?

Payment of options premium abroad for securities / commoditiestrading?

Options premium creates a contingent asset

There is no future liability for any payment

Further this is not in the nature of remittance for margins ormargin calls to overseas exchanges/ overseas counterparty

Payment of Life Insurance Policy Premium – Notification 12(R).

Policy must be held under a specific or general permission ofRBI.

Maturity proceeds or any claim due on policy shall berepatriated to India within seven days from date of receipt.

Payment of health Insurance Premium should be within limits ofLiberalized Remittance Scheme.

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Gift Transactions Gift of sum of money by resident to a non-resident or non-resident to

resident is a Current A/c Transaction.

Gift of foreign security is a Capital A/c Transaction having followingimplications:

Inheritance of foreign security:

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Donor Donee Remarks

NR R Permissible Reg 22(1)(i) of 120

R R Not covered by general permission

R NR Not covered by general permission

Donor Donee Remarks

NR R Permissible Reg 22(1)(iii) of 120

R R Permissible Reg 22(1)(iii) of 120



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Gift Transactions Gift and inheritance of Immovable Property Situated outside India:

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Donor Donee Remarks

NR R Not covered by general permission

R R Regulation 5(1)(a) for Sec 6(4) cases and 5(2) of Not. 7(R)



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Settling Property in Trust

Resident becoming beneficiary in an overseas trust.

Resident settling properties in a trust having NRI beneficiaries.

The assets settled should be FEMA compliant and trusteesshould be resident Indian as per FEMA.

FEMA Master Direction No. 13 – Remittance of Assets- Para3.2(iii) - in case settlement is done without retaining any life interestin the property i.e. during the lifetime of the owner/ parent, it wouldtantamount to regular transfer by way of gift and the remittance ofsale proceeds of such property would be guided by the extantinstructions on remittance of balance in the NRO account;

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Amendments to Section 6 (date yet to be notified)

The RBI may, in consultation with the Central Government specifyany class or classes of capital account transactions, involving debtinstruments, which are permissible, the limit up to which FE shallbe admissible for such transactions, and any conditions whichmay be placed.

The CG may, in consultation with the RBI specify any class orclasses of capital account transactions, not involving debtinstruments, which are permissible, the limit up to which FE shallbe admissible for such transactions, and any conditions whichmay be placed

Once notified, all Capital Account transactions, except involvingdebt instruments will be regulated by the CG, which arecurrently being regulated by the RBI.

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Capital Account Transaction

Section 6(4) – a person resident in India may hold, own,transfer or invest in foreign currency, foreign security orany immovable property situated outside India if suchcurrency, security or property was acquired, held orowned by such person when he was resident outsideIndia or inherited from a person who was resident outsideIndia

Section 6(5) – a person resident outside India may hold,own, transfer or invest in Indian currency, security or anyimmovable property situated in India if such currency,security or property was acquired, held or owned by suchperson when he was resident in India or inherited from aperson who was resident in India


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Capital Account Transaction under Section 6(4)

RBI has vide its A.P. (DIR Series) Circular No. 90 datedJanuary 9, 2014 clarified that the following transactionsshall be covered under section 6(4) of FEMA, 1999:

a) Foreign currency accounts opened and maintained bysuch a person when he was resident outside India;

b) Income earned through employment or business orvocation outside India taken up or commenced, or frominvestments made, or from gift or inheritance receivedwhile such a person was resident outside India;

c) Foreign exchange including any income arising therefrom, and conversion or replacement or accrual to thesame, held outside India acquired by way ofinheritance from a person resident outside India;

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Capital Account Transaction under Section 6(4)

A person resident in India may freely utilize all theireligible assets abroad as well as income on such assets orsale proceeds thereof received after their return to India formaking any payments or to make any fresh investmentsabroad without approval of RBI.

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Current Account Transaction

Current account transaction is a transaction other than acapital account transaction

Current account transactions are governed by ForeignExchange Management (Current Account Transaction) Rules,2000 ("Current Account Transactions Rules").

India is signatory to WTO Agreement and in terms of ArticleVIII; it states that “......no member shall, without the approval ofthe Fund (IMF), impose restrictions on the making of payments andtransfers for current international transaction.”


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Current account transactions are divided into 3 schedules inCurrent Account Transactions Rules:-

Schedule I – Prohibited Transactions

Schedule II – Transactions requiring prior approval of Governmentof India

Schedule III – Transactions requiring prior approval of RBI

Drawal of foreign exchange is prohibited for – Transactions specified in Schedule I; or

Travel to Nepal and / or Bhutan; or

Transaction with person resident in Nepal or Bhutan (thisprohibition may be relaxed by special approval).


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Schedule I (Rule 3): Transactions which are prohibited Remittance out of lottery winnings (*)

Remittance of income from racing/riding etc., or any other hobby

Remittance for purchase of lottery tickets, banned/prescribed magazines,football pools, sweepstakes etc.

Payment of commission on exports made towards equity investment inJV/WOS abroad of Indian companies.

Payment of commission on exports under Rupee State Credit route exceptcommission up to 10% of invoice value of exports of tea and tobacco.

Payment related to ‘Call Back Services’ of telephones

Remittance of interest income of funds held in Non-resident Special RupeeScheme A/c.

(NOT PERMISSIBLE EVEN FROM RFC and EEFC ACCOUNT)

* - In terms of FDI Policy even technology collaboration (franchise,trademark, brand name, management contract is prohibited for lotterybusiness and gambling and betting)


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Schedule II (Rule 4) Transactions requiring prior approvalof Government:

Purpose of remittance Ministry/Department of Govt. of India

Cultural tours Ministry of Human resourcesDevelopment

Advertisement in foreign print media forpurpose other than promotion of tourism,foreign investments and internationalbidding (exceeding USD 10,000) by a StateGovernment and its Public sectorundertaking

Ministry of Finance

Remittance of freight of vessel charted by aPSU

Ministry of Surface Transport

Payment of import [through oceantransport] by a Govt. department or a PSUon CIF basis



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Purpose of remittance Ministry/Department of Govt. of India

Multimodal transport operators makingremittance to their agents abroad

Registration Certificate from theDirector General of Shipping

Remittance of hiring charges oftransporters by TV channels, internetservice providers

Ministry of Information andBroadcasting, Ministry ofCommunication and Informationtechnology

Remittance of container detention chargesexceeding rate prescribed by DirectorGeneral of Shipping


Remittance of prize money/sponsorship ofsports activity abroad by a person otherthan International/National/State Levelsports bodies if the amount involvedexceeds USD 1,00,000

Ministry of Human ResourcesDevelopment (Department of YouthAffairs and Sports)

Remittance for membership of P&I club Ministry of Finance


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Schedule III (Rule 5): Prior Approval of RBIFacilities for Individuals - Individuals can make remittance within limit ofUSD 2,50,000 for following facilities. However, any additional remittance inexcess of said limit shall require RBI approval.

i. Private visits to any country (except Nepal and Bhutan)

ii. Gift or donation

iii. Going abroad for employment

iv. Emigration

v. Maintenance of close relatives abroad

vi. Travel for business, or attending a conference or specialised training or formeeting expenses for meeting medical expenses, or check up abroad, or foraccompanying as attendant to a patient gong abroad for medicaltreatment/check up.

vii. Expenses in connection with medical treatment abroad

viii.Studies abroad

ix. Any other current account transaction.


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For items mentioned at (iv), (vii) and (viii), individual may remitamount in excess of USD 2,50,000 if it is so required by a country ofemigration, medical institute offering treatment or the university.

A person who is resident but not permanently resident and is:

A citizen of a foreign state other than Pakistan; or

Is a citizen of India, who is on deputation to the office or branchof a foreign company or subsidiary or joint venture in India ofsuch foreign company

may make remittance up to his net salary (after deduction of taxes,contribution to provident fund and other deductions.

[for purpose of this item, a person resident in India on account of hisemployment or deputation of a specified duration (irrespective of lengththereof) or for a specific job or assignments, the duration of which doesnot exceed three years, is a resident but not permanently resident]


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An entity in India may remit PF or pension in respect of itsemployees who are resident in India but not permanently residentin India (Regulation 5 of Notification 13R)


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Facilities for persons other than individuals – Following remittancesby persons other than individuals shall require prior approval of RBI

Donations exceeding 1% of their foreign exchange earnings duringthe three financial years or USD 5,00,000 whichever is less.

Commission per transaction to agents abroad for sale of residentialflats or commercial plots in India exceeding USD 25,000 or 5% ofinward remittance whichever is more.

Remittances exceeding USD 1,00,00,000 per project for anyconsultancy services in respect of infrastructure projects and USD10,00,000 per project for other consultancy services procured fromoutside India.

(Infrastructure shall mean as defined in Explanation to para1(iv)(A)(a) of Schedule I of FEMA 3.


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Current Account Transaction ‘Infrastructure Sector’ has the same meaning as given in the

Harmonised Master List of Infrastructure sub-sectors approved byGovernment of India vide Notification F. No. 13/06/2009-INF datedMarch 27, 2012 as amended / updated from time to time.

Thus infrastructure sector and sub-sectors for the purpose of ECBinclude (Para 1(iv)(A)(a) of Schedule I of FEMA 3):

a. Energy

b. Communication

c. Transport

d. Water and Sanitation

e. Mining, exploration and refining

f. Social and commercial infrastructure (includes Hospitals/Hotels)

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Current Account Transaction : Pre-incorporation Exps

Remittances exceeding 5% of investment brought into India or USD1,00,000 whichever is higher for reimbursement of pre-incorporation expenses by entity in India.

As per FEMA Notification No. 20:

Capitalization of import of capital goods/ machinery/ equipment(excluding second-hand machinery) and pre-operative/ pre-incorporation expenses (including payments of rent etc.) - Thisrequires Government Approval- Para 3(e) of Sch I of Not. 20

Capitalization of any other funds payable by the investee company,remittance of which does not require prior permission ofgovernment [A.P. (DIR Series) circular No. 31 dated September 17,2014]. – Para 2(4)(iv) of Sch I of Not. 20


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Unincorporated Joint Ventures - Co-operationAgreements/Strategic Alliances

It’s a contractual relationship/arrangement like a cooperationagreement or a strategic alliance wherein the parties agree tocollaborate as independent contractors rather than shareholders in acompany or partners in a legal partnership.

Co-operation agreements / strategic alliances can be employed forthe following types of business activities: Technology transfer agreements

Joint product development

Purchasing agreements

Distribution agreements

Marketing and promotional collaboration

Intellectual advice In such a JV the rights, duties and obligations of theparties as between themselves.


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Royalties and Lump Sum Fees

Earlier there were monetary caps on remittances (both lumpsumfees and royalties) made for technology collaborations andlicense or use of trademark / brand name.

Now there are no restrictions and the payments towards thelumpsum fees or royalties for technology collaborations andlicense or use of trademark / brand name can be made under theautomatic route, without any monetary cap

The limits were there in Schedule II which read as under:

Remittances under technical collaboration agreements where payments ofroyalty exceeds 5% on local sales and 8% on exports and lump sumpayments exceeds USD 2 million.

This has been removed w.e.f. 16/12/2009

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Advance against exports of goods can be received by an exporterfrom a buyer or third party named in export declaration.

Interest can be paid on advance payment (rate of interest shall notexceed LIBOR plus 100 basis points).

Shipment of goods needs to be made within one year from the dateof receipt of Advance.

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DEPOSIT ACCOUNTS –NRE/NRO/FCNR

FEMA NOTIFICATION NO. 5(R) &

MASTER DIRECTION NO. 14


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Features of deposits schemes under FCNR /NRE /NRO account

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Particulars Non-Ordinary Rupee Account (NROAccount)

Non-Resident (External) Rupee Account Scheme (NRE Account)

Foreign Currency (Non-Resident)Account (Bank) (FCNR(B) Account)

Who can open an account

Person resident outside India (Individuals ofPakistan nationality and entities of Pakistanand Bangladesh ownership require RBIapproval. Individuals of Bangladeshnationality may be allowed by AD Banksubject to holding of valid visa and residentialpermit issued by FRO and FRRO)

NRIs and PIOs NRIs and PIOs

Repatriable / Non-Repatriable

Non-Repatriable (Except under USD 1 millionper F.Y. scheme)

Repatriable Repatriable

Type of account

Current, Savings, Recurring or Fixed DepositAccounts

Current, Savings,Recurring orFixed DepositAccounts

Fixed deposits


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Particulars Non-Ordinary Rupee Account (NRO Account)



Joint accounts

Jointly with residents on‘former or survivor’ basis.NRIs and / or PIOs may holdaccount jointly with otherNRIs and / or PIOs.

Joint accounts can be openedby two or more NRIs and/orPIOs or with a residentrelative(s) on ‘former orsurvivor’ basis.

Same as NRE account

Major Permissible Debits

Local rupee paymentsincluding payments forinvestments, Remittanceoutside India of currentincome in India (net of taxes),transfer to other NROaccounts, settlement ofcharges on InternationalCredit Cards.

Local disbursements,remittance outside India,transfer to other NRE /FCNR account , Investmentin shares/ securities/commercial paper of anIndian company or purchaseof immovable property inIndia etc.

Same as NRE account


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Major Permissible Credits

Remittance in permittedforeign currency,Deposit by accountholder during temporaryvisit to India, Transferfrom other NROaccounts, legitimate duesin India ofaccountholder.

Remittance in permitted foreign currency, proceeds of personal cheques, proceeds of

foreign currency / bank notes tenderedduring temporary visit to India,

transfer from other NRE / FCNR account, interest accrued on funds held in account, current income due in India, maturity of sales proceeds of permissible

investment in India, refund of shares or debentures to new

issue, refund of application/earnest

money/purchase consideration on accountof non allotment of flat etc.

Same as NREaccount


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Loan – to account holders

Rupee loan againstsecurity of fixeddeposits for personalpurpose or businesspurpose except forrelending oragricultural /plantation activity orfor investment in realestate business

Overdraft

• For personal purpose orbusiness purpose exceptfor relending oragricultural / plantationactivity or for investmentin real estate business• For direct investment in

India in firms /companies on non-repatriation basis• For purchase of flat in

India for own residentialpurpose

Same as NRE account


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Foreign Currency (Non-Resident) Account (Bank) (FCNR(B) Account)

Loan – to third parties

Loans / overdrafts toR / firms / Indiancompanies againstsecurity of FD in NROaccount subject toconditions

Fund based / non-fund bases to R / firms / Indiacompanies against security of FD in NRE accountsubject to conditions

Same as NRE account

Loan –outside India

Not allowed Authorised dealers may allow theirbranches/correspondents outside India to grantloans to or in favor of non-resident depositor orthird parties at the request of depositor for bonafide purpose except for purpose of relending orcarrying on agricultural/plantation activities or forinvestment in real estate business against securityof funds held in NRE accounts in India and alsoagree for remittance of the funds from India, ifnecessary, for liquidation of the outstanding.

Same as NRE account


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Particulars Non-Ordinary Rupee Account (NRO Account)


Foreign Currency (Non-Resident) Account (Bank) (FCNR(B) Account)

Change of residential status of the account holder

NRO accounts may bedesignated as residentaccounts on the return ofthe account holder toIndia for any purposeindicating his intention tostay in India for anuncertain period.Likewise, when a residentIndian becomes a personresident outside India, hisexisting resident accountshould be designated asNRO account.

NRE accounts should bedesignated as residentaccounts or the funds heldin these accounts may betransferred to the RFCaccounts, at the option ofthe account holder,immediately upon thereturn of the account holderto India for taking upemployment or on changein the residential status.

In case account holderbecomes resident, depositsmay be allowed tocontinue till maturity atthe contracted rate ofinterest, if so desired byhim.AD Banks should convertthe FCNR(B) deposits onmaturity into residentrupee deposit accounts orRFC account, at the optionof the accountholder.


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Deposits under FCNR /NRE /NRO account

Interest on NRO deposit would be non repatriableand would be taxable.

Interest on NRO A/c should be regarded as investment

income and hence 20% rate should apply. (AAR no.784 dated

17th December, 2008 in the case Dr. Virendrakumar Raina)

In case NRI is able to access treaty entered by India and if

treaty rate is lower than 20% such lower rate can be adopted.

For e.g. UAE treaty provides for 12.5% withholding tax on

interest

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Transfer from NRO to NRE A/c

NRI shall be eligible to transfer funds from NRO

Account to NRE Account

overall ceiling of USD one million per financial

year subject to payment of taxes.

{A. P. (DIR Series) Circular No.117 dated May 07,

2012}

15 CA- CB is required


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Investment by way of deposits to proprietorship concern, partnership firm & companies on non-

repatriation basis from NRIs or PIOs

Schedule 7 – FEMA Notification No. 5 (R) – Acceptance ofDeposit Regulations

Investment in deposits by NRIs will be on nonrepatriation basis.

The maturity period of deposit shall not exceed 3 years

The amount of deposit shall be received by debit toNRO account only, provided that the amount of thedeposit shall not represent inward remittances ortransfer of funds from NRE/FCNR(B) accounts intothe NRO account. (substituted by FEM(Deposit)(Amendment) Regulations, 2004.)

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FOREIGN CURRENCY ACCOUNTS BY A PERSON RESIDENT

IN INDIA

FEMA NOTIFICATION NO. 10(R) &

MASTER DIRECTION NO. 14


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Exchange Earners Foreign Currency(EEFC) Account in India

FEMA Notification No. 10(R)/2015-RB dated January 21, 2015 – Who can open, hold and maintain an EEFC Account – any person

resident in India subject to certain conditions.

Limits – 100% of foreign exchange earnings can be credited to EEFCAccount.

Permissible Credits –a) Inward remittance through normal banking channels.

b) Foreign exchange payment received by 100% EOU or unit in ExportProcessing Zone or Software Technology Park or Electronic Hardware Parkfor aupply of goods to similar such units or units in Domestic Tariff Area andvice versa.

c) Payment received by exporter from an acocunt maintained with AD Bank forpurpose of counter trade.

d) Advance received against exports of goods or services.

e) Payment received for export of goods and services from India, out of fundsrepresenting repayment of State Credit in U.S. dollar held in the account ofBank for Foreign Economic Affairs, Moscow, with AD in India;


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FEMA Notification No. 10(R)/2015-RB dated January 21, 2015 –e) Professional earnings including director’s fees, consultancy fees, lecture fees,

honorarium and similar other earnings received by a professional byrendering services in his individual capacity

f) Payments received in foreign exchange by an Indian ‘start up’ or any otherentity as may be notified by RBI in consultation with central government,arising out of exports/sales made by the said entity or its overseassubsidiaries, if any.

g) Payments received through international credit card for whichreimbursement will be provided in foreign exchange may be regarded as aremittance through banking channels

h) Interest earned on funds held in the account.

i) Recredit of unutilised foreign currency earlier withdrawn from the account

j) Amount representing repayment by the account holder’s importer customer,of loan/advances granted, to the exporter holding such account

k) Representing the disinvestment proceeds received by the resident accountholder on conversion of shares held by him to ADRs/GDRs under the DRScheme, 2014 approved by Government of India (GOI).


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FEMA Notification No. 10(R)/2015-RB dated January 21, 2015 – Permissible Debits –

a) Payments for current account transactions and all permissible capital accounttransactions.

b) Payment for goods purchased from 100% EOU or units in Export processingZone or Software Technology Parks or Electronic Hardware TechnologyParks.

c) Payment of customs duty.

d) Trade related loans and advances by exporter holding such account to hisimporter customer outside India;

e) Payment in foreign exchange to a person resident in India for supply of goodsand services including payment for airfare and hotel expenditure

No resitriction on withdrawal in rupee of funds in EEFC.

Amount withdarwn in rupee shall not be eligible for conversion into foreigncurrency and for re-credit to EEFC.

Close relatives can be added as joint holder on ‘former or survivor’ basis.

Close relatives not eligible to operate the account during lifetime.


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Resident Foreign Currency (RFC) Account in India

FEMA Notification No. 10(R)/2015-RB dated January 21, 2015 - A personresident in India may open, hold and maintain with AD in India a RFCaccount out of foreign exchange -

Received as pension or any other superannuation or other monetarybenefits from his employer outside India; or

Realised on conversion of assets referred to in section 6(4) of the act andrepatriated to India; or

Received or acquired as gift or inhertiance from a person referred to inSection 6(4) of the Act; or

Acquired or received before 8th July 1947 or any income arising oraccruing thereon which is held outside India by any person in pursuanceof general or special permission of RBI or acquired as gift or inheritancetherefrom; or

Received as proceeds of life insurance policy claims/maturity/surrendervalues settled in foreign currency from an insurance company in Indiapermitted to undertake life insurance business by the IRDA


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Resident Foreign Currency (Domestic) Account in India

FEMA Notification No. 10(R)/2015-RB dated January 21, 2015 - A personresident in India may open, hold and maintain with AD in India a RFC(Domestic) account out of foreign exchange acquired in form of currencynotes, bank notes and travellers’ cheques as under-

by way of payment for services not arising from any business in oranything done in India while on a visit to any place outside India; or

from any person not resident in India and who is on a visit to India, ashonorarium or gift or for services rendered or in settlement of any lawfulobligation; or

by way of honorarium or gift while on a visit to any place outside India; or

represents the unspent amount of foreign exchange acquired by him froman authorized person for travel abroad; or

as gift from a ‘close relative’ as defined in section 2(77) of the CompaniesAct, 2013; or

by way of earning through export of goods/services, or as royalty,honorarium or by any other lawful means; or


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Resident Foreign Currency (Domestic) Account in India

representing the disinvestments proceeds received by the residentaccountholder on conversion of shares held by him to ADRs/GDRs underDR Scheme, 2014 approved by the Government of India; or

by way of earnings received as the proceeds of life insurance policyclaim/maturity/surrender values settled in foreign currency from aninsurance company in India permitted to undertake life insurancebusiness by IRDA.

The account shall be a CURRENT ACCOUNT.

It shall not bear interest.

No ceiling on balances in the account.

Funds can be used towards Current Account Transactions and permissibleCapital Account Transactions.


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Foreign Currency Accounts in IndiaFollowing can open, maintain and hold a Foreign Currency Account in India:

An Exporter undertaking construction contract or turnkey project outsideIndia or providing services or engineering goods from India on deferredpayment.

Indian Agent of a Shipping or Airline Company incorporated outside formeeting local expenses in India.

Ship manning / crew managing agencies for purpose of undertakingtransactions in ordinary course of its business.

Project Office of Foreign Company in India.

An Indian Company receiving FDI. Indian investee company should haveimpending foreign currency expenditure and the account shall be closedimmediately after the requirements are completed and in no case shall beoperational for more than six months from the date of opening of such account.

AD in India may allow opening temporary foreign currency accounts byorganizers of international seminars, conferences, conventions etc. forholding such events in India for the receipt of delegate fees and paymenttowards expenses including payment to special invitees from abroad.


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Foreign Currency Accounts outside India

Following can open, maintain and hold a Foreign Currency Account outsideIndia:

Indian Firm or Body Corporate in name of its office or its branch outsideIndia or representative outside India for purpose of normal businessoperations of office or branch subject to following conditions:

a) Branch / office has been set up for conducting normal business activityof Indian entity.

b) Total remittances to all accounts in accounting year shall not exceed:

15% of average annual sales/income or turnover of Indian entityduring last two financial years or 25% of net worth (whichever ishigher) – for meeting initial expenses of branch or office

10% of average annual sales/income or turnover of Indian entityduring last financial year - for meeting recurring expenses

c) For remittances through funds held in EEFC account of Indian entity.


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d) Purchase of office equipment and other assets for normal business ofbranch or office will not be treated as capital account transaction.

e) Account to be closed within six months if branch or office is not set upor within one month of closure of overseas branch/office or where norepresentative is posted within six months and funds shall berepatriated to India.


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Following can open, maintain and hold a Foreign Currency Account in India:

An Exporter – who has undertaken construction contract or turnkey projectoutside India or who is exporting services or engineering goods from India ondeferred payment terms.

An Indian Party for Overseas Direct Investment subject to certainconditions.

An Indian Start up having subsidiaries overseas – for crediting foreignexchange earnings out of exports/sales made by said entity and / orreceivables arising out of exports/sales made by subsidiary.

Funds raised by way of External Commercial Borrowings (ECB) or throughAmerican Depository Receipts (ADRs) or Global Depository Receipts(GDRs) - pending their utilization or repatriation to India, be held in depositsin foreign currency accounts with bank outside India.

Shipping or Airline Company incorporated in India – for undertakingtransactions in ordinary course of business.

Resident Individuals - for making remittance under Liberalised RemittanceScheme (LRS).


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A person resident in India who has gone abroad for studies or who is on avisit to a foreign country - provided that all the credits from India into theaccount shall be in accordance with the Act, rules and regulations made thereunder and on his return to India, after completion of his studies, such anaccount will be deemed to have been opened under the LRS.

A person resident in India who has gone out of India to participate in anexhibition/trade fair outside India - for crediting the sale proceeds of goodson display in the exhibition/fair. The balance in the account is repatriated toIndia through normal banking channels within one month from the date ofclosure of the exhibition / trade fair.

A citizen of a foreign state resident in India, being an employee of a foreigncompany or a citizen of India, employed by a foreign company outside Indiaand in either case on deputation to the office/branch/subsidiary/joint ventureof such foreign company - receive the whole salary payable to him for theservices rendered to the office/branch/subsidiary/joint venture in India ofsuch foreign company, by credit to such account, provided tax under IncomeTax Act, 1961 is paid on the entire salary as accrued in India.


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A citizen of foreign state resident in India, being in employment with anIndian company - remit the whole salary received in India in rupees to suchaccount for services rendered to such Indian Company, provided tax underIncome Tax Act, 1961 is paid on the entire salary as accrued in India.


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Crystallization of Inoperative Foreign Currency Deposits

FEMA Notification No. 10A/2014-RB dated March 21,2014 Deposit means and includes account balances or deposit of money with

an Authorised Bank.

If a foreign currency denominated deposit (with fixed maturity)remains inoperative for a period of three years or more, AD Bankshall convert the balances lying in foreign currency into Indianrupees at the end of third year.

In case of a foreign currency denominated deposit (with no fixedmaturity) remaining inoperative for a period of three years ormore, after giving three month notice to depositor AD Bank shallconvert the balances lying in foreign currency into Indian rupeesat the end of the noticeperiod.


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THANK YOU

FIRST DESERVE

AND

THEN DESIRE!!

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