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This presentation summarizes the recent development in foreign exchange laws of India related to residents, non residents and person of Indian origin.
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RECENT DEVELOPMENTS IN FOREIGN EXCHANGE MANAGEMENT LAW RESIDENTS, NON RESIDENT INDIANS AND PIOS
Presentation by Mr. GD Chugh
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RECENT DEVELOPMENTS IN FEMA
Key Issues for Residents and NRIs – Overview
Liberalized Remittance Scheme for Residents (LRS)
Relaxations for Non Resident Individuals
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A 'PERSON RESIDENT IN INDIA' IS DEFINED IN SECTION 2(V) OF FEMA, 1999 AS :
A PERSON RESIDING IN INDIA FOR MORE THAN 182 DAYS DURING THE COURSE OF THE PRECEDING FINANCIAL YEAR BUT DOES NOT INCLUDE –
(A) A PERSON WHO HAS GONE OUT OF INDIA OR WHO STAYS OUTSIDE INDIA, IN EITHER CASE -FOR OR ON TAKING UP EMPLOYMENT OUTSIDE INDIA, OR FOR CARRYING ON OUTSIDE INDIA A BUSINESS OR VOCATION OUTSIDE INDIA, OR FOR ANY OTHER PURPOSE, IN SUCH CIRCUMSTANCES AS WOULD INDICATE HIS INTENTION TO STAY OUTSIDE INDIA FOR AN UNCERTAIN PERIOD;
(B) A PERSON WHO HAS COME TO OR STAYS IN INDIA, IN EITHER CASE, OTHERWISE THAN –FOR OR ON TAKING UP EMPLOYMENT IN INDIA, OR FOR CARRYING ON IN INDIA A BUSINESS OR VOCATION IN INDIA, OR FOR ANY OTHER PURPOSE, IN SUCH CIRCUMSTANCES AS WOULD INDICATE HIS INTENTION TO STAY IN INDIA FOR AN UNCERTAIN PERIOD
ANY PERSON OR BODY CORPORATE REGISTERED OR INCORPORATED IN INDIA,AN OFFICE, BRANCH OR AGENCY IN INDIA OWNED OR CONTROLLED BY A PERSON RESIDENT OUTSIDE INDIA,
AN OFFICE, BRANCH OR AGENCY OUTSIDE INDIA OWNED OR CONTROLLED BY A PERSON RESIDENT IN INDIA
Definition of Resident
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FOREX FACILITIES FOR RESIDENTS
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THE LEGAL FRAMEWORK:
Section 5 of FEMA, 1999 & Foreign Exchange Management (Current Account Transactions) Rules, 2000
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DIFFERENCE BETWEEN CAPITAL AND CURRENT ACCOUNT TRANSACTIONS
Capital Account Transactions Current Account Transactions
‘capital account transaction’ means a transaction which alters the assets or liabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons resident outside India
All transactions undertaken by a resident that do not alter his / her assets or liabilities, including contingent liabilities, outside India are current account transactions.
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TRANSACTIONS FOR WHICH DRAWAL OF FOREIGN EXCHANGE IS PROHIBITEDRemittances out of • lottery winnings• Income from racing/riding etc. or any
other hobby
Remittance for purchase of lottery tickets, banned/proscribed magazines, football pools, sweepstakes etc.
Payment of commission on exports made for equity investment in JV/WOS abroad
Continued on next page
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TRANSACTIONS FOR WHICH DRAWAL OF FOREIGN EXCHANGE IS PROHIBITED
Dividend to which dividend balancing is applicable
Commission on export under rupee state credit route
Call back services
Interest income on funds in Non-Special Rupee (Account) scheme
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GUIDELINES ON TRAVEL RELATED MATTERS:
Private visits abroad:
• upto USD 10,000 or its equivalent per financial year for private visits Business Trips
Business Trips:
• upto USD 25,000 per visit• Visits in connection with attending of an international
conference, seminar, specialised training, study tour, apprentice training, etc., are treated as business visits.
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QUANTUM OF FOREIGN CURRENCY THAT MAY BE TAKEN FOR TRAVEL ABROAD.
Travellers proceeding to countries:
• Iraq or Libya- maximum USD 5000 or its equivalent
• Islamic Republic of Iran, Russian Federation and other Republics of Commonwealth – Full exchange
• All other - maximum USD 3000 or its equivalent
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FOREIGN EXCHANGE FOR MEDICAL TREATMENT TO PATIENT, ATTENDANT
Maximum amount of USD 100,000 or its equivalent Self declaration from applicant required
For the amount Exceeding above limit Estimate from hospital/doctor is required
An amount up to USD 25,000 is allowed for maintenance expenses of a patient going abroad for medical treatment or check-up abroad, or to a person for accompanying as attendant to a patient going abroad for medical treatment/check-up.
The amount of USD 25,000 allowed to the patient going abroad is in addition to the limit of USD 100,000 mentioned above.
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OTHER FACILITIES/ISSUES Facilities to students:
1. Estimate received from the institution abroad
or
USD 100,000, per academic year,
whichever is higher
2. A student holding NRO account may withdraw and repatriate up to USD 1 million per financial year from his NRO account.
3. The student may avail of an amount of USD 10,000 or its equivalent for incidental expenses
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OTHER FACILITIES/ISSUES Foreign exchange available to a Person going abroad
for employment: upto USD 100,000 on self declaration Foreign exchange available to a Person going abroad
for emigration: upto the amount prescribed by the country of emigration or USD 100,000
Small value remittances (upto USD 25000 or equivalent
Category of visit requiring prior Government approval: Dance troupes, artistes, etc.
No. of days in advance for buying Forex for travel: 60 days
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OTHER FACILITIES/ISSUES
Mode of payment for buying forex: Where Rupee equivalent exceeds Rs.50,000/-, the entire payment has to be made by way of a crossed cheque/ banker’s cheque/ pay order/ demand draft/ debit card / credit card / prepaid card only.
What to do with unspent Forex balance: 1. To be surrendered to AD bank within 180 days 2.May retain USD 2000 in F/c or T/C 3. May put in RFC(D) account.
Gift / Donation to a person resident outside India: upto limit of USD 200,000 under LRS
Use of International Credit Cards (ICCs) / ATMs/ Debit Cards for forex transactions: Use is permitted
Amount of Indian currency that can be taken abroad, brought back : upto INR7500 per person
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OTHER FACILITIES/ISSUES Amount of foreign currency by a person coming to
India: No limit. On declaration to Customs on CDF Total Foreign Exchange upto USD10,000 including
T/Cs, currency notes Foreign Currency notes upto USD 5000 may be
brought without declaration. Sending Gift article out of India- of value upto INR
500,000 Taking personal Jewellery out of India- as per the
Baggage Rules
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OTHER FACILITIES/ISSUES Extending local hospitality to a non resident:
permitted under Regulation 2(i) of Receipt from and Payment to, a person resident outside India Regulations, 2000
Regulation 2 of Notification No. FEMA/16/RB-2000 dated 3.05.2000 permits
“ a person resident in India, to make payment in rupees (i) towards meeting expenses on account of boarding lodging and services related thereto or towards to and from and within India of a person resident outside India who is on a visit to India.
Foreign Currency Account in India by a resident- EEFC, RFC and RFC(D) A/c s
Holding of assets abroad by a resident in India – 1. If acquired, held or owned by such person when he was
resident outside India or inherited from a person who was resident outside India.
2. Acquired out of remittances made under the Liberalized Remittance Scheme of USD 200,000
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DOCUMENTATIONUnder sub-section (5) of Section 10 of the FEMA, 1999 –
Documents and
other information
has to be submitted to the satisfaction of AD bank.
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KEY ISSUES FOR RESIDENTSLiberalized Remittance Scheme (LRS) of USD 200,000 : The Scheme was announced 04.02.2004 as a step
towards further simplification and liberalization of the foreign exchange facilities available to residents.
Under the Liberalised Remittance Scheme, all resident individuals, including minors, are allowed to freely remit up to USD 200,000 per financial year (April – March) for any permissible current or capital account transaction or a combination of both.
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LIBERALISED REMITTANCE SCHEME Permissible transactions under the Scheme:
Investment in immovable property or shares or debt instruments or any other assets outside India.
Open foreign currency accounts with banks outside India for carrying out transactions permitted under the Scheme
Prohibited items under the Scheme: Purposes prohibited, restricted under Current
Account transactions Rules Trading forex, setting up a company abroad, to
terrorist destinations
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LIBERALISED REMITTANCE SCHEME LRS is a facility in addition to existing facilities Gifts/Donations to non residents: within the limit
under LRS Rupee gifts, loans to close relative NRIs / PIOs:
also within LRS limit Repatriation of investments and income thereon.
Not required LRS is on gross basis Use of LRS for ESOPs etc. permissible Use for repayment of overseas loan; Permissible
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LIBERALISED REMITTANCE SCHEME Remittances under LRS may be consolidated in
respect of family membersYes. In case of remitter being a minor, the LRS
declaration form should be countersigned by the minor’s natural guardian.
Purchase of objects of art as Foreign Trade Policy Permissible, as per Foreign Trade policy
Opening a Foreign Currency account with a bank outside India - No restriction
Restrictions on frequency of remittances under LRS - No restriction
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LIBERALISED REMITTANCE SCHEME Requirements to be complied by remitter Designate a branch of an AD 2.Furnish an application-cum-declaration in the
specified format regarding the purpose of the remittance
Declare that the funds belong to him and will not be used for purposes prohibited or regulated under the Scheme.
No guidelines for investing: Except exercising due diligence.
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FACILITIES FOR NON RESIDENT INDIANS (NRIS)
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MEANING Non-Resident Indians
A Non Resident Indian (NRI) is a person resident outside India, who is a citizen of India or is a person of Indian origin.
Person of Indian Origin Person of Indian Origin (PIO) for this purpose is
defined as a citizen of any country other than Bangladesh or Pakistan, if (a) he at any time held Indian passport; or (b) he or either of his parents or any of his grandparents was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or (c) the person is a spouse of an Indian citizen or a person referred to in sub-clause (a) or (b).
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TYPES OF ACCOUNTS MAINTAINED BY NRIS/PIOS IN INDIA Non Resident Ordinary Rupee Account (NRO
Account) Non Resident (External) Rupee Account (NRE
Account) Foreign Currency Non Resident (Bank) Account
( FCNR(B) Account )
Individuals/ entities of Bangladesh and Pakistan require prior approval of the Reserve Bank for opening above accounts.
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NON RESIDENT ORDINARY RUPEE ACCOUNT
Types of Account - Current, Savings, Recurring, Fixed Rate of Interest - As determined by Bank, cannot be higher
than those offered by them on comparable domestic rupee deposits.
Permissible credits - Inward remittances, Current income, sale proceeds of assets
Eligible debits - Local payments, Current income net of taxes, Remittance of USD 1 million per financial year after paying applicable taxes.
Operations - may be held jointly with Resident/ NRI Loans: Loans in rupees to non-resident account holder and to
third against the security of fixed deposits. Repatriations of balances in NRO account: upto exceeding
USD one million per financial year, subject to payment of applicable taxes.
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NON RESIDENT (EXTERNAL) RUPEE ACCOUNT
Type of Account - Current, savings, Recurring & Fixed. Accounts can be opened only by the non-resident himself
Rate of Interest: As determined by Bank, cannot be higher than those offered by them on comparable domestic rupee deposits
Permissible Credits: Inflow, Sale proceeds of FDI, income on investment under Sch.3 of FEMA 20,
Eligible debits: Local payments, FDI, Repatriation, transfer to other NRE/FCNR Accounts
Operations: Resident Power of Attorney holder can only make local payments or remittances to Account holder
Loans: upto 100 lakh on security of deposit to depositors older or third party.
Repatriability: Freely repatriable Tax Benefits: Accrued interest income and balances held in
NRE accounts are exempt from Income tax and Wealth tax, respectively.
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FOREIGN CURRENCY NON RESIDENT (BANK) ACCOUNT
Type of Account: Only in Term Deposits of 1 to 5 years
Currency of Account: In any freely convertible currency
Rate of Interest: within the ceiling rate of LIBOR/SWAP rates plus 125 basis points for the respective currency/corresponding maturities
Permissible credits: : Inflow, Sale proceeds of FDI, income on investment under Sch.3 of FEMA 20
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FOREIGN CURRENCY NON RESIDENT (BANK) ACCOUNT Eligible Debits - Local payments, FDI, Repatriation,
transfer to other NRE/FCNR Operations - NRI can open joint account with a
resident close relative on former or survivor basis Loans - upto 100 lakh on security of deposit to
depositors older or third party. Repatriability - Freely repatriable
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Borrowing money by an individual resident Indian from his close relatives outside India
Maximum USD 2,50,000 Subject to the conditions as follows:
the minimum maturity period of the loan is one year;
the loan is free of interest; and the amount of loan is received by inward
remittance in free foreign exchange through normal banking channels or by debit to the NRE/FCNR(B) account of the NRI
RBI vide its A.P.(DIR Series) Circular No. 95 dated 21.03.2012 has allowed that the repayment of such loans may also be made by credit to NRE / Foreign Currency Non-Resident (Bank) [FCNR(B)] account of the lender concerned.
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Lending money by individual resident to his close relative NRI/PIO
Within overall limit of USD 200000 under LRS per finacial year
by way of crossed cheque /electronic transfer to meet the borrower’s personal or business requirements in India
Conditions. The loan should be interest free; have a maturity of minimum one year and cannot be remitted outside India.
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Repayment of loans of an NRI by an Resident Individual close relative
Where an AD bank in India has granted loan to a non-resident Indian, such loans may also be repaid by resident close relative, of the NRI by crediting the borrower's loan account through the bank account of such relative.
Close Relative means a Relative as defined in Section 6 of the Companies Act, 1956
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INVESTMENT FACILITIES FOR NRIS
On Repatriation basis – Under Schedule 1 and Schedule 3 of Notification No. FEMA 20
On non-repatriation basis under Schedule 4 of above Notification
NRI can also invest in non-convertible debentures both on repatriation basis and on non-repatriation basis
Note : NRIs are not permitted to invest in small savings or Public Provident Fund (PPF).
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INVESTMENT IN IMMOVABLE PROPERTY BY NRI/PIO
Definition of NRI/PIO for investment in property Property prohibited for acquisition Source of funds Acquisition by gift, inheritance Transfer of property by NRI Repatriation of sale proceed
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DEFINITION OF NRI/PIO FOR INVESTMENT IN PROPERTY
NRI - Non-Resident Indian (NRI) is a citizen of India resident outside India
PIO - A ‘Person of Indian Origin' means an individual (not being a citizen of Pakistan or Bangladesh or Sir Lanka or Afghanistan or China or Iran or Nepal or Bhutan) who at any time, held an Indian Passport or who or either of whose father or mother or whose
grandfather or grandmother was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955).
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PROPERTY PROHIBITED FOR ACQUISITION
Agricultural Land
Plantation property
Farm house
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SOURCE OF FUNDSFunds remitted to India through normal banking channels or
Funds held in NRE / FCNR (B) / NRO accounts maintained in India
No payment can be made either by traveller’s cheque or by foreign currency notes or by other mode except those specifically mentioned above.
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ACQUISITION BY GIFT, INHERITANCE NRIs and PIOs can freely acquire immovable
property by way of a gift either from a person resident in India; or an NRI; or a PIO
The property can only be commercial or residential in nature.
i) An NRI; ii) a PIO; and iii) a foreign national of non-Indian origin can inherit and hold immovable property in India from a person who was resident in India.
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TRANSFER OF PROPERTY BY
NRINRI may transfer his immovable property to:
A Resident Indian
A NRI and
A PIO
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REPATRIATION OF SALE PROCEEDS
Amount to be repatriated shall not exceed: the amount paid for acquisition of the immovable
property in forex through normal banking channels the amount paid out of funds held in FCNR (B)
Account the foreign currency equivalent (as on the date of
payment) of the amount paid where such payment was made from the funds held in Non-Resident External account for acquisition of the property; and
In the case of residential property, the repatriation of sale proceeds is restricted to not more than two such properties
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FACILITIES TO RETURNING NRIS/PIOS
Resident Foreign Currency Account:
Meaning
Features
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MEANING OF RESIDENT FOREIGN CURRENCY ACCOUNT
Under clause (b) of section 2 of the RFC Scheme - 'RFC Account' means an account expressed in any permitted currency, opened and maintained pursuant to this Scheme, by an eligible person with any Authorised Dealer
XForeign
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FEATURES OF RESIDENT FOREIGN CURRENCY ACCOUNT Proceeds of assets held outside India at the
time of return can be credited to RFC account. The funds in RFC accounts are free from all
restrictions Maintenance in the form of current or savings
or term deposit accounts permitted to be held jointly with the resident
close relative(s)
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GENERAL FACILITIES Holding joint accounts with resident close relatives Gift of shares/securities/convertible debentures etc
to NRI close relative Types of services that can be provided by resident
to NRI
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