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Various Aspects under FEMA
Financial Services
BY CA. Sudha G. Bhushan
This Document provides an overview pertaining to regulatory
framework of Financial Services sector in India and the
Foreign Direct Investment Policy pertaining to same


12/18/2010
Contents




     Overview of Foreign Exchange Management Act, 1999

     Foreign Direct Investment Policy

     About Financial Services

     Components of Financial Services

     FDI in Financial Services

     Indian financial Service Sector – Growth and opportunity




           | By CA. Sudha G. Bhushan
Overview of Foreign Exchange Management Act, 1999
The preamble of the act says that it is an Act to consolidate and amend the law relating to
foreign exchange with the objective of facilitating external trade and payments and for
promoting the orderly development and maintenance of foreign exchange market in India.

Foreign Exchange Management Act, 1999 (“FEMA”) has come in force from 1st June, 2000
by replacing Foreign Exchange Regulations Act (“FERA”). The main change that has been
brought is that FEMA is a civil law, whereas the FERA was a criminal law. FERA was popular
for its draconian provisions. The shift of FERA to FEMA was the shift of control of foreign
exchange to regulation and promotion and orderly development of Foreign exchange. FEMA
is forward looking legislation which aims to facilitate foreign trade.

FEMA aims to achieve self regulation instead of imposed restrictions. The rationale for strict
regulations under FERA 1973 after Independence was that India was left with little forex
reserves and during the oil –crisis of seventies ballooning oil import bills further drained
foreign exchange reserves. Unsatisfactory reserves made it imperative to put in place
stringent controls to conserve foreign exchange and to utilise it in the best interest of the
country.

FEMA has 49 Sections of which 9 Sections (Sections 1 to 9) are substantive and the rest are
procedural or administrative. RBI is entrusted with the administration and implementation
of FEMA. RBI has so far issued over 200 Notifications, each of which contains several
regulations for a particular class of transactions, e.g., Notification No. FEMA/21/RB-2000,
deals with acquisition and transfer of immovable property in India.

Notifications are type of self contained set of regulations, which are mostly divided into
three broad parts

       (i) Short title and commencement

       (ii) Definitions and

       (iii) Other provisions

It is interesting to note that the same term may be defined differently for different purposes
in different Notifications. For example, the term “Person of Indian Origin (PIO)” is defined
differently in three Notifications, namely

(i) FEMA 13/2000-RB pertaining to remittance of assets,

(ii) FEMA 21/2000-RB pertaining to acquisition and transfer of immovable property in India
and




           | By CA. Sudha G. Bhushan
(iii) FEMA 24/2000-RB pertaining to investment in a firm or a proprietary concern in India.
The definition section of each Notification makes it clear that the words and expressions
used therein, but not defined in that particular Notification, shall have the same meanings
respectively assigned to them in the Act. Therefore, wherever a particular term is defined in
the Notification, the meaning to be assigned is unique to that Notification and mostly cannot
be applied to another.

Thus, interpretation and application of FEMA provisions and Notifications require utmost
care. FEMA is applicable to the whole of India. The expression “whole of India” would
indicate that the provisions of the Act are applicable to all transactions taking place in India.
Thus, any person who is present in India at the time of transaction has to comply with
provisions of FEMA. FEMA is applicable to all branches, offices and agencies outside India
owned or controlled by a person resident in India. Thus, FEMA has retained its extra-
territorial application, as under FERA.

The Enforcement of FEMA is done through Reserve Bank of India and Central Government.
The power has been given to Central Government [section 46] and RBI [Section 47] to lay
down detailed rules and regulations to carry out the various provisions of the Act. Where
under Section 47 the reserve bank of India can make regulations governing procedural and
administrative aspects of FEMA the central government have been given the power to make
rules governing enforcement of FEMA.The Central Government has established a Directorate
of Enforcement for the purpose of enforcement of Act [section 36]. Officers under
Directorate of enforcement are known as officers of Enforcement. These officers can
investigate the contraventions of FEMA.




           | By CA. Sudha G. Bhushan
Foreing
                             Exchange
                            management
                             Act, 1999



        Master                              Regulations -
       circulars                            Reserve Bank




                       Regulatory
                       Framework

                                            Rules- Central
       Circulars
                                             Goverment




                            Notifications




| By CA. Sudha G. Bhushan
Foreign Direct Investment Policy

To fulfill the need of freeing the Indian industry from excessive official control and for
promoting foreign investments in India in necessary sectors the much required liberalization
of Indian economy was brought in by Industrial Policy of 1991. From then the Indian
economy is more facilitating to Foreign Direct investment in all form.

The intent and objective of the Government is to promote foreign direct investment through
a transparent, predictable, simple and clear policy framework and the which reduces
regulatory burden.

Foreign Direct Investment in India is regulated under FEMA and it regulations. FDI by non-
resident in resident entities through transfer or issue of security to person resident outside
India is a ‘Capital account transaction’ under FEMA, 1999. Keeping in view the current
requirements, the Government from time to time comes up with new regulations and
amendments/changes in the existing ones through order/allied rules, Press Notes, etc. The
Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry,
Government of India makes policy pronouncements on FDI through Press Notes/ Press
Releases which are notified by the Reserve Bank of India as amendment to notification
No.FEMA 20/2000-RB dated May 3, 2000. These notifications take effect from the date of
issue of Press Notes/ Press Releases, unless specified otherwise therein. The procedural
instructions are issued by the Reserve Bank of India vide A.P.Dir. (series) Circulars. The
regulatory framework over a period of time thus consists of Acts, Regulations, Press Notes,
Press Releases, Clarifications, etc.
Foreign Investment can be in two ways
 (i) Foreign Direct Investment (FDI) and
(ii) Foreign Portfolio Investment.

“Investment’ is usually understood as financial contribution to the capital of an enterprise or
purchase of shares in the enterprise. ‘Foreign investment’ is investment in an enterprise by
a Non-Resident irrespective of whether this involves new capital or reinvestment of
earnings. One of the difference between FDI and Foreign Portfolio investment is the
objective with which the investment is made. The main motivation of investor of Foreign
Direct Investment is a strategic long term relationship with the direct investment enterprise
to ensure the significant degree of influence by the direct investor in the management of the
direct investment enterprise. Direct investment allows the direct investor to gain access to
the direct investment enterprise which it might otherwise be unable to do. However the
objectives of portfolio investment is different whereby investors do not generally expect to
influence the management of the enterprise.

FDI is defined by International Monetary Fund (IMF) and Organization for Economic
Cooperation and Development(OECD) as a category of cross border investment made by a
resident in one economy (the direct investor) with the objective of establishing a ‘lasting
interest’ in an enterprise (the direct investment enterprise) that is resident in an economy
other than that of the direct investor. In the Indian context, ‘FDI’ means investment by non-
resident entity/person resident outside India in the capital of the Indian company under
Schedule 1 of FEM(Transfer or Issue of Security by a Person Resident Outside India)
Regulations 2000.


           | By CA. Sudha G. Bhushan
It is the policy of the Government of India to attract and promote productive FDI in
activities which significantly contribute to industrialization and socio-economic development.
FDI supplements domestic capital and technology.


FDI EQUITY INFLOWS (MONTH-WISE) DURING THE FINANCIAL YEAR 2010-11:

Financial Year          Amount of FDI inflows                 Amount of FDI inflows
   2010-11                 (In Rs. Crore)                        (In US$ mn)
( April-March )
  April 2010                      9,697                                 2,179

   May 2010                      10,135                                 2,213

  June 2010                       6,429                                 1,380

  July 2010                       8,359                                 1,785
 August 2010                      6,196                                 1,330


  September                       9,754                                 2,118
    2010
    Total                        50,570                                11005
 2010-11 (up
to September
    2010)

# Figures are provisional, subject to reconciliation with RBI, Mumbai.
Soruce : www.dipp.nic.in

For detailed statistics on FDI follow:
http://www.dipp.nic.in/fdi_statistics/indian_FDI_September2010.pdf




           | By CA. Sudha G. Bhushan
SECTORS ATTRACTING HIGHEST FDI EQUITY INFLOWS

Amount Rupees in crores (US$ in million)

RANKS                     SECTOR                    2008-09   2009-10   2010-11

                                                    (April-   (April-   ( April-
                                                    March)    March)
                                                                         Sep)




  1.               SERVICES SECTOR                  28,516    20,776     9,506

                 (financial & non-financial)        (6,138)   (4,353)   (2,067)

  2.     COMPUTER SOFTWARE & HARDWARE                7,329     4,351     2,438

                                                    (1,677)    (919)     (534)

  3.            TELECOMMUNICATIONS                  11,727    12,338     4,803

            (radio paging, cellular mobile, basic   (2,558)   (2,554)   (1,057)
                    telephone services)

  4.           HOUSING & REAL ESTATE                12,621    13,586     2,957

                                                    (2,801)   (2,844)    (640)

  5.         CONSTRUCTION ACTIVITIES                 8,792    13,516     1,523

                                                    (2,028)   (2,862)    (332)

  6.                      POWER                      4,382     6,908     3,357

                                                     (985)    (1,437)    (729)

  7.            AUTOMOBILE INDUSTRY                  5,212     5,754      825

                                                    (1,152)   (1,208)    (180)

Source: www.dipp.nic.in

For detailed statistics on FDI follow:
http://www.dipp.nic.in/fdi_statistics/indian_FDI_September2010.pdf




         | By CA. Sudha G. Bhushan
Financial Services Sector
Financial Services are defined as a bundle of intangible utilities aimed at satisfying the
needs of users. Financial Services bridges the gap between savers and those who need
funds. A financial service perform

   1. Identification of resources for efficient allocation
   2. Providing constant evaluation of allotted of resources
   3. Providing liquidity to investors

Financial System of any country consists of financial markets, financial intermediation and
financial instruments or financial products.

There are multiple regulators for various financial services in India. For eg; Reserve Bank of
India, IRDA

Financial services in India have prevailed since time immemorial. Kautilya’s Arthashatra can
said to be the first organized literature on financial service where he has amply described
the rules and regulations of money and mint management. The old instruments, like hundi
resemble the bill of exchange or promissory note or bearer cheque of contemporary
financial markets.

Financial services can be categorized into two groups, namely

   1. Fund based activities and
   2. Non fund based activities

Fund based activities are those where there is involvement of funds like underwriting,
portfolio management, venture capital, private equity, structural finance etc. Non funds
based financial services are those where intellectual property is used and advices are
offered. A fee or commission is charged for rendering services. The service sector in India
has been witnessing a boom in recent times. In addition to the strong growth in IT/ITES,
the Indian financial services sector is considered to be stable and progressive, and has been
a major beneficiary of India’s growth story.

The growing attractiveness of the financial services has triggered the entry of global majors.
Aggressive plans of incumbents coupled with the entry of new players are expected to
further drive the growth of sector. Liberalization, privatization and Globalization have further
strengthened the financial services in India.




           | By CA. Sudha G. Bhushan
Asset
                                reconstruction
                                  companies

     Non Banking
                                                           Banking -
       Finance
                                                         Private Sector
     Companies




                                Financial
   Credit
                                Services
                                                                Banking -
Information
                                                               Public Sector
 Companies




                Commodity
                                                 Insurance
                Exchanges




    | By CA. Sudha G. Bhushan
FDI Policy in Financial Services

(A) Asset Reconstruction Companies
‘Asset Reconstruction Company’ (ARC) means a           % of FDI CAP/Equity: - 49% of paid
company registered with the Reserve Bank of            up capital
India under Section 3 of the Securitisation and
Reconstruction    of   Financial Assets     and
                                                       Route: - Government
Enforcement of Security Interest Act, 2002
(SARFAESI Act).

SARFAESI Act was famed with the purpose to regulate securitization and reconstruction of
financial assets and enforcement of security interest and for matters connected therewith or
incidental thereto.

As defined in the Act "asset reconstruction" means acquisition by any securitisation
company or reconstruction company of any right or interest of any bank or financial
institution in any financial assistance for the purpose of realisation of such financial
assistance;

Presently 49% of FDI is allowed in ARC under Government Route subject to following
conditions as mentioned below:

       (i) Persons resident outside India, other than Foreign Institutional Investors (FIIs),
       can invest in the capital of Asset Reconstruction Companies (ARCs) registered with
       Reserve Bank only under the Government Route. Such investments have to be
       strictly in the nature of FDI. Investments by FIIs are not permitted in the equity
       capital of ARCs.

       (ii) However, FIIs registered with SEBI can invest in the Security Receipts (SRs)
       issued by ARCs registered with Reserve Bank. FIIs can invest upto 49 per cent of
       each tranche of scheme of SRs, subject to the condition that investment by a single
       FII in each tranche of SRs shall not exceed 10 per cent of the issue.

       (iii)Any individual investment of more than 10% would be subject to provisions of
       section 3(3) (f) of Securitization and Reconstruction of Financial Assets and
       Enforcement of Security Interest Act, 2002.

Key Players in Market: - Arcil etc




           | By CA. Sudha G. Bhushan
(B) Banking –Private sector
             Private
The Banking sector is most predominant sector in any financial system. FDI in private
banking sector is allowed upto 74% including investment by FIIs. Following are the further
    ing                            including
conditions:

(1) The limit of 74% limit will include investment under the Portfolio Investment Scheme
(PIS) by FIIs, NRIs and shares acquired prior to September 16, 2003 by erstwhile OCBs,
and continue to include IPOs, Private placements, GDR/ADRs and acquisition of shares from
existing shareholders.

(2) The aggregate foreign investment in a private bank from all sources will be allowed up
      e
to a maximum of 74 per cent of the paid up capital of the Bank. At all times, at least 26
per cent of the paid up capital will have to be held by residents, except in regard rega
to a wholly-owned subsidiary of a foreign bank.
            owned

(3) The stipulations as above will be applicable to all investments in existing private sector
banks also.




                                                   Branches
                               A wholly-
                                 owned
                               subsidiary

                                            a subsidiary
                                                 -
                                            Investment
                                                74%




                           Foreing Banks in India



           | By CA. Sudha G. Bhushan
(4) The permissible limits under portfolio investment schemes through stock exchanges for
 FIIs and NRIs will be as follows:

 In case of FIIs

 In the case of FIIs, individual FII holding is restricted to 10 per cent of the total paid-up
 capital, aggregate limit for all FIIs cannot exceed 24 per cent of the total paid-up capital,
 which can be raised to 49 per cent of the total paid -up capital by the bank concerned
 through a resolution by its Board of Directors followed by a special resolution to that effect
 by its General Body.FII investment limit is 49 per cent of the total paid-up capital.

 In the case of NRIs

 Individual holding is restricted to 5 per cent of the total paid-up capital both on repatriation
 and non repatriation basis and aggregate limit cannot exceed 10 per cent of the total paid-
 up capital both on repatriation and non-repatriation basis. However, NRI holding can be
 allowed up to 24 per cent of the total paid-up capital both on repatriation and non-
 repatriation basis provided the banking company passes a special resolution to that effect in
 the General Body.

 Private Bank with JV with Insurance sector

 Applications for foreign direct investment (FDI route) in private banks having joint
 venture/subsidiary in insurance sector may be addressed to the Reserve Bank of India (RBI)
 for consideration in consultation with the Insurance Regulatory and Development Authority
 (IRDA) in order to ensure that the 26 per cent limit of foreign shareholding applicable for
 the insurance sector is not being breached.

 Other conditions:

a) Transfer of shares under FDI from residents to non-residents will continue to require
   approval of RBI and Government as applicable.

b) The policies and procedures prescribed from time to time by RBI and other institutions
   such as SEBI, Department of Company Affairs and IRDA on these matters will apply as
   applicable.

c) RBI guidelines relating to acquisition by purchase or otherwise of shares of a private bank,
   if such acquisition results in any person owning or controlling 5 per cent or more of the
   paid up capital of the private bank will apply to non-resident investors as well.




             | By CA. Sudha G. Bhushan
Setting up of a subsidiary by foreign banks

       (a) Foreign banks will be permitted to either have branches or subsidiaries but not
       both.

       (b) Foreign banks regulated by banking supervisory authority in the home country
       and meeting Reserve Bank’s licensing criteria will be allowed to hold 100 per cent
       paid up capital to enable them to set up a wholly-owned subsidiary in India.

       (c) A foreign bank may operate in India through only one of the three channels viz.,
               (i) branches
               (ii) a wholly-owned subsidiary and
               (iii) a subsidiary with aggregate foreign investment up to a maximum of 74
               per cent in a private bank.

       (d) A foreign bank will be permitted to establish a wholly-owned subsidiary either
       through conversion of existing branches into a subsidiary or through a fresh banking
       license. A foreign bank will be permitted to establish a subsidiary through acquisition
       of shares of an existing private sector bank provided at least 26 per cent of the paid
       capital of the private sector bank is held by residents at all times.

       (e) A subsidiary of a foreign bank will be subject to the licensing requirements and
       conditions broadly consistent with those for new private sector banks.

       (f)Guidelines for setting up a wholly-owned subsidiary of a foreign bank to be issued
       separately by RBI.

       (g) All applications by a foreign bank for setting up a subsidiary or for conversion of
       their existing branches to subsidiary in India will have to be made to the RBI.

At present there is a limit of ten per cent on voting rights in respect of banking companies,
and this should be noted by potential investor.

Key Foreign Banks in India: - ABN AMRO, Bank of America, HSBC, Deutsche Bank, Citibank
India, Barclays Bank etc




           | By CA. Sudha G. Bhushan
(C) Banking- Public Sector

The FDI can be made subject to Banking Companies (Acquisition & Transfer of
Undertakings) Acts 1970/80. This ceiling (20%) is also applicable to the State Bank of India
and its associate Banks.

FDI limit is 20% (FDI and Portfolio Investment) through Government route.


(D) Financial Infrastructure in the Securities Market

Foreign investment is permitted in infrastructure companies in Securities Markets in
   (a) Stock exchanges
   (b) Depositories and
   (c) Clearing corporations

The investment has to be done in compliance with SEBI Regulations and subject to the
following conditions:

(i) There is a composite ceiling of 49 per cent for Foreign Investment, with a FDI limit of 26
per cent and an FII limit of 23 per cent of the paid-up capital;
(ii) FDI will be allowed with specific prior approval of FIPB; and
(iii) FII can invest only through purchases in the secondary market.


(E) Commodity Exchanges

A commodity exchange is a place where various commodities and derivatives are bought
and sold. Commodities exchanges usually trade on commodity futures. Futures trading in
commodities are regulated under the Forward Contracts (Regulation) Act, 1952. Commodity
Exchanges, like Stock Exchanges, are infrastructure companies in the commodity futures
market. With a view to infuse globally acceptable best practices, modern management skills
and latest technology, it was decided to allow foreign investment in Commodity Exchanges.

The FDI allowed in the sector is 49% including the investment from FIIs. The other
conditions of investment are as follows:
   1. Investment by Registered FII under Portfolio Investment Scheme (PIS) will be
       limited to 23%
   2. Investment under FDI Scheme shall be limited to 26%
   3. The investment can be made though Government Route only
   4. FII purchases shall be restricted to secondary market only and
   5. No non-resident investor/ entity, including persons acting in concert, will hold more
       than 5% of the equity in these companies.

Key players: National Commodity & Derivatives Exchange Limited (NCDEX), Multi
commodity exchange of India Ltd




           | By CA. Sudha G. Bhushan
(F) Credit Information Companies (CIC)

Credit information company means a company               FDI Cap: - 49% (FDI & FII)
formed and registered under the Companies Act,
1956 (1 of 1956) and which has been granted a            Route: Government
certificate of registration under sub-section (2) of
Section 5 of Credit Information Companies
(Regulation) Act, 2005.

“Credit information” means any information relating to—
      (i) the amounts and the nature of loans or advances, amounts outstanding under
      credit cards and other credit facilities granted or to be granted, by a credit institution
      to any borrower;
      (ii) the nature of security taken or proposed to be taken by a credit institution from
      any borrower for credit facilities granted or proposed to be granted to him;
      (iii) the guarantee furnished or any other non-fund based facility granted or
      proposed to be granted by a credit institution for any of its borrowers;
      (iv) the creditworthiness of any borrower of a credit institution;
      (v) any other matter which the Reserve Bank may, consider necessary for inclusion
      in the credit information to be collected and maintained by credit information
      companies, and, specify, by notification, in this behalf;

Foreign Investment in allowed till 49% under approval route. Following are further
conditions:

   1. Foreign investment is permitted under the Government route, subject to regulatory
      clearance from RBI.
   2. Investment by a registered FII under the Portfolio Investment Scheme would be
      permitted up to 24% only in the CICs listed at the Stock Exchanges, within the
      overall limit of 49% for foreign investment. Such FII investment would be permitted
      subject to the conditions that:
          (a) No single entity should directly or indirectly hold more than 10% equity.
          (b) Any acquisition in excess of 1% will have to be reported to RBI as a
              mandatory requirement; and
          (c) FIIs investing in CICs shall not seek a representation on the Board of
              Directors based upon their shareholding.

Players:-
    (a) Credit Information Bureau of India Ltd (CIBIL)
    (b) Equifax Credit Information Services [backed by Crisil and Tata Capital]
    (c) Experian Credit Information Company of India [US based]
    (d) Highmark Credit Information Services




           | By CA. Sudha G. Bhushan
(G) Insurance
The Insurance sector in India is regulated by INSURANCE REGULATORY AND DEVELOPMENT
AUTHORITY ACT, 1999. The objective of act is to provide for the establishment of an
Authority to protect the interests of holders of insurance policies, to regulate, promote and
ensure orderly growth of the insurance industry and for matters connected therewith or
incidental thereto and further to amended the Insurance Act, 1938, the Life Insurance
Corporation Act, 1956 and the General Insurance Business(Nationalisation) Act, 1972.There
have been lot of changes in the sector since it has opened for private participation in 2000
following the recommendations of the Malhotra Committee report. Presently FDI upto 26%
is allowed under automatic route. Other conditions are as follow:

(1) FDI in the Insurance sector, as prescribed in the Insurance Act, 1999, is allowed under
the automatic route.

(2) This will be subject to the condition that Companies bringing in FDI shall obtain
necessary license from the Insurance Regulatory & Development Authority for undertaking
insurance activities.

                List of Private Companies in Life Insurance

Name of the Private Life       % of                            Name of the Foreign
Insurance                      Foreign                         partner
Company                        Equity

Allianz Bajaj Life Insurance   26                              Allianz
Co. Ltd.
Birla Sun Life Insurance Co.   26                              Sunlife
Ltd.
HDFC Standard Life             18.60                           Standard Life
Insurance Co.
Ltd.
ICICI Prudential Life          26                              Prudential
Insurance Co.
Ltd.
ING Vysya Life Insurance Co.   26                              ING
Ltd
Max New York Life Insurance    26                              New York Life
Co.
Ltd.
MetLife India Insurance Co.    25.99                           Metlife
Ltd.
Om Kotak Mahindra Life         26                              Old Mutual
Insurance
Co. Ltd.

                               26                              Cardiff
SBI Life Insurance Co. Ltd.


           | By CA. Sudha G. Bhushan
List of Private Companies in General Insurance

Name of the Private          % of                      Name of the
General                      Foreign                   Foreign partner
Insurance Company            Equity
Royal Sundaram Alliance      26                        Royal Sun Alliance
Insurance
Co. Ltd
ICICI Lombard General        26                        Lombard
Insurance
Co. Ltd
IFFCO-Tokio General          26                        Tokio Marine
Insurance Co.
Ltd
Tata-AIG General Insurance   26                        AIG
Co. Ltd




          | By CA. Sudha G. Bhushan
(H) Non-Banking Finance Companies (NBFC)
Foreign investment in NBFC is allowed under the automatic route in the following activities:

   1. Merchant Banking
   2. Under Writing
   3. Portfolio Management Services
   4. Investment Advisory Services
   5. Financial Consultancy
   6. Stock Broking
   7. Asset Management
   8. Venture Capital
   9. Custodian Services
   10. Factoring
   11. Leasing & Finance
   12. Housing Finance
   13. Forex Broking
   14. Credit Card Business
   15. Money Changing Business
   16. Micro Credit
   17. Rural Credit

             Minimum capitalization norms for Fund based Activities

FDI Limit                      Minimum     capitalization      Capital Infusion
                               requirement
Foreign capital upto 51%       US $0.5 million                 to be brought upfront
Foreign capital more than      US $ 5 million                  to be brought upfront
51% and upto 75%
Foreign capital more than      US $ 50 million                 US$ 7.5 million to be
75%                                                            brought upfront and the
                                                               balance in 24 months.


100% foreign owned NBFCs with a minimum capitalisation of US$ 50 million can set up
step down subsidiaries for specific NBFC activities, without any restriction on the number of
operating subsidiaries and without bringing in additional capital.
Joint Venture operating NBFCs that have 75% or less than 75% foreign investment can
also set up subsidiaries for undertaking other NBFC activities, subject to the subsidiaries
also complying with the applicable minimum capitalisation norm mentioned above.

                Minimum capitalization norms for Non Fund based Activities

FDI Limit                    Minimum capitalization       Capital Infusion
                             requirement
For all permitted non-       US $0.5 million              upfront
fund     based    NBFCs
irrespective of the level
of foreign investment


            | By CA. Sudha G. Bhushan
NBFC with Non- Fund based activities would not be permissible for such a company
       to set up any subsidiary for any other activity, nor it can participate in any equity of
       an NBFC holding/operating company.
       (vii) This will be subject to compliance with the guidelines of RBI.


                                            Investment
                                              advisory
                                              Services




                    Credit rating                                   Financial
                      Agencies                                     Consultancy
                                           Non-Fund
                                            Based
                                           activities


                                 Money
                                                          Forex
                                Changing
                                                         Broking
                                Business




(2) Venture Capital Fund (VCF)

A Foreign Venture Capital Investor (FVCI) may contribute up to 100% of the capital of an
Indian Venture Capital Undertaking and may also set up a domestic asset management
company to manage the fund. All such investments can be made under automatic route in
terms of Schedule 6 to Notification No. FEMA 20.

A SEBI registered FVCI can also invest in domestic venture capital fund registered under the
SEBI (Venture Capital Fund) Regulations, 1996. Such investments would also be subject to
RBI regulations and FDI policy. However, in case the entity undertaking venture capital fund
activity is a Trust registered under the Indian Trust Act, 1882, FDI would be permitted
under the Government route. FVCIs are also allowed to invest in other companies subject to
FDI Regulations.




           | By CA. Sudha G. Bhushan
Indian financial Service Sector – Growth and opportunity
India is the largest democracy and 4th largest economy in the world. With its consistent
growth performance and abundant high skilled man power, India provides enormous
opportunities for investment, both domestic and foreign. Since the beginning of reforms in
1991, major reform initiative has been taken in the field of investment, trade, financial
sector, exchange control simplification of procedure. India provides liberal, attractive and
investor friendly investor.

 The Financial Services sector in India has emerged as a mature and sophisticated system.
System which is inherently strong, functionally diverse and displays efficiency and flexibility.
This is a sector which is further expected to witness increasing consolidation, sophistication
and maturity in future. As compared to other developed markets, the Indian financial
services sector is largely under penetrated with a huge potential for growth keeping in
consideration government thrust on liberalization on one side and rising income, increasing
awareness of financial products, strong equity market growth on the other.

Indian Financial Services sector provides very promising investment for global investors.
Backed by favorable regulatory reforms and institutional framework, robust earning of the
corporate sector and a booming capital market, favorable demographics with a growing
consumer and investor class, increased saving in the economy channelised into the creation
of productive assets. In Financial year 09 the contribution of financial services sector to
India's GDP was 15% which is the second-largest component after trade, hotels, transport
and communication all combined together[as per the Banking & Finance Journal, released
by an FICCI in August 2010].

The robust financial services sector and vibrant Indian Economy have given birth
to plethora of emerging opportunities which are expected to gain prominence in
the long term based on regulatory and market developments.




           | By CA. Sudha G. Bhushan
DISCLAIMER

The analysis/views in this booklet do not purport to be and should not be treated as legal
opinion.
                                  ****


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Background material fdi-in_financial_services

  • 1. Various Aspects under FEMA Financial Services BY CA. Sudha G. Bhushan This Document provides an overview pertaining to regulatory framework of Financial Services sector in India and the Foreign Direct Investment Policy pertaining to same 12/18/2010
  • 2. Contents Overview of Foreign Exchange Management Act, 1999 Foreign Direct Investment Policy About Financial Services Components of Financial Services FDI in Financial Services Indian financial Service Sector – Growth and opportunity | By CA. Sudha G. Bhushan
  • 3. Overview of Foreign Exchange Management Act, 1999 The preamble of the act says that it is an Act to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India. Foreign Exchange Management Act, 1999 (“FEMA”) has come in force from 1st June, 2000 by replacing Foreign Exchange Regulations Act (“FERA”). The main change that has been brought is that FEMA is a civil law, whereas the FERA was a criminal law. FERA was popular for its draconian provisions. The shift of FERA to FEMA was the shift of control of foreign exchange to regulation and promotion and orderly development of Foreign exchange. FEMA is forward looking legislation which aims to facilitate foreign trade. FEMA aims to achieve self regulation instead of imposed restrictions. The rationale for strict regulations under FERA 1973 after Independence was that India was left with little forex reserves and during the oil –crisis of seventies ballooning oil import bills further drained foreign exchange reserves. Unsatisfactory reserves made it imperative to put in place stringent controls to conserve foreign exchange and to utilise it in the best interest of the country. FEMA has 49 Sections of which 9 Sections (Sections 1 to 9) are substantive and the rest are procedural or administrative. RBI is entrusted with the administration and implementation of FEMA. RBI has so far issued over 200 Notifications, each of which contains several regulations for a particular class of transactions, e.g., Notification No. FEMA/21/RB-2000, deals with acquisition and transfer of immovable property in India. Notifications are type of self contained set of regulations, which are mostly divided into three broad parts (i) Short title and commencement (ii) Definitions and (iii) Other provisions It is interesting to note that the same term may be defined differently for different purposes in different Notifications. For example, the term “Person of Indian Origin (PIO)” is defined differently in three Notifications, namely (i) FEMA 13/2000-RB pertaining to remittance of assets, (ii) FEMA 21/2000-RB pertaining to acquisition and transfer of immovable property in India and | By CA. Sudha G. Bhushan
  • 4. (iii) FEMA 24/2000-RB pertaining to investment in a firm or a proprietary concern in India. The definition section of each Notification makes it clear that the words and expressions used therein, but not defined in that particular Notification, shall have the same meanings respectively assigned to them in the Act. Therefore, wherever a particular term is defined in the Notification, the meaning to be assigned is unique to that Notification and mostly cannot be applied to another. Thus, interpretation and application of FEMA provisions and Notifications require utmost care. FEMA is applicable to the whole of India. The expression “whole of India” would indicate that the provisions of the Act are applicable to all transactions taking place in India. Thus, any person who is present in India at the time of transaction has to comply with provisions of FEMA. FEMA is applicable to all branches, offices and agencies outside India owned or controlled by a person resident in India. Thus, FEMA has retained its extra- territorial application, as under FERA. The Enforcement of FEMA is done through Reserve Bank of India and Central Government. The power has been given to Central Government [section 46] and RBI [Section 47] to lay down detailed rules and regulations to carry out the various provisions of the Act. Where under Section 47 the reserve bank of India can make regulations governing procedural and administrative aspects of FEMA the central government have been given the power to make rules governing enforcement of FEMA.The Central Government has established a Directorate of Enforcement for the purpose of enforcement of Act [section 36]. Officers under Directorate of enforcement are known as officers of Enforcement. These officers can investigate the contraventions of FEMA. | By CA. Sudha G. Bhushan
  • 5. Foreing Exchange management Act, 1999 Master Regulations - circulars Reserve Bank Regulatory Framework Rules- Central Circulars Goverment Notifications | By CA. Sudha G. Bhushan
  • 6. Foreign Direct Investment Policy To fulfill the need of freeing the Indian industry from excessive official control and for promoting foreign investments in India in necessary sectors the much required liberalization of Indian economy was brought in by Industrial Policy of 1991. From then the Indian economy is more facilitating to Foreign Direct investment in all form. The intent and objective of the Government is to promote foreign direct investment through a transparent, predictable, simple and clear policy framework and the which reduces regulatory burden. Foreign Direct Investment in India is regulated under FEMA and it regulations. FDI by non- resident in resident entities through transfer or issue of security to person resident outside India is a ‘Capital account transaction’ under FEMA, 1999. Keeping in view the current requirements, the Government from time to time comes up with new regulations and amendments/changes in the existing ones through order/allied rules, Press Notes, etc. The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India makes policy pronouncements on FDI through Press Notes/ Press Releases which are notified by the Reserve Bank of India as amendment to notification No.FEMA 20/2000-RB dated May 3, 2000. These notifications take effect from the date of issue of Press Notes/ Press Releases, unless specified otherwise therein. The procedural instructions are issued by the Reserve Bank of India vide A.P.Dir. (series) Circulars. The regulatory framework over a period of time thus consists of Acts, Regulations, Press Notes, Press Releases, Clarifications, etc. Foreign Investment can be in two ways (i) Foreign Direct Investment (FDI) and (ii) Foreign Portfolio Investment. “Investment’ is usually understood as financial contribution to the capital of an enterprise or purchase of shares in the enterprise. ‘Foreign investment’ is investment in an enterprise by a Non-Resident irrespective of whether this involves new capital or reinvestment of earnings. One of the difference between FDI and Foreign Portfolio investment is the objective with which the investment is made. The main motivation of investor of Foreign Direct Investment is a strategic long term relationship with the direct investment enterprise to ensure the significant degree of influence by the direct investor in the management of the direct investment enterprise. Direct investment allows the direct investor to gain access to the direct investment enterprise which it might otherwise be unable to do. However the objectives of portfolio investment is different whereby investors do not generally expect to influence the management of the enterprise. FDI is defined by International Monetary Fund (IMF) and Organization for Economic Cooperation and Development(OECD) as a category of cross border investment made by a resident in one economy (the direct investor) with the objective of establishing a ‘lasting interest’ in an enterprise (the direct investment enterprise) that is resident in an economy other than that of the direct investor. In the Indian context, ‘FDI’ means investment by non- resident entity/person resident outside India in the capital of the Indian company under Schedule 1 of FEM(Transfer or Issue of Security by a Person Resident Outside India) Regulations 2000. | By CA. Sudha G. Bhushan
  • 7. It is the policy of the Government of India to attract and promote productive FDI in activities which significantly contribute to industrialization and socio-economic development. FDI supplements domestic capital and technology. FDI EQUITY INFLOWS (MONTH-WISE) DURING THE FINANCIAL YEAR 2010-11: Financial Year Amount of FDI inflows Amount of FDI inflows 2010-11 (In Rs. Crore) (In US$ mn) ( April-March ) April 2010 9,697 2,179 May 2010 10,135 2,213 June 2010 6,429 1,380 July 2010 8,359 1,785 August 2010 6,196 1,330 September 9,754 2,118 2010 Total 50,570 11005 2010-11 (up to September 2010) # Figures are provisional, subject to reconciliation with RBI, Mumbai. Soruce : www.dipp.nic.in For detailed statistics on FDI follow: http://www.dipp.nic.in/fdi_statistics/indian_FDI_September2010.pdf | By CA. Sudha G. Bhushan
  • 8. SECTORS ATTRACTING HIGHEST FDI EQUITY INFLOWS Amount Rupees in crores (US$ in million) RANKS SECTOR 2008-09 2009-10 2010-11 (April- (April- ( April- March) March) Sep) 1. SERVICES SECTOR 28,516 20,776 9,506 (financial & non-financial) (6,138) (4,353) (2,067) 2. COMPUTER SOFTWARE & HARDWARE 7,329 4,351 2,438 (1,677) (919) (534) 3. TELECOMMUNICATIONS 11,727 12,338 4,803 (radio paging, cellular mobile, basic (2,558) (2,554) (1,057) telephone services) 4. HOUSING & REAL ESTATE 12,621 13,586 2,957 (2,801) (2,844) (640) 5. CONSTRUCTION ACTIVITIES 8,792 13,516 1,523 (2,028) (2,862) (332) 6. POWER 4,382 6,908 3,357 (985) (1,437) (729) 7. AUTOMOBILE INDUSTRY 5,212 5,754 825 (1,152) (1,208) (180) Source: www.dipp.nic.in For detailed statistics on FDI follow: http://www.dipp.nic.in/fdi_statistics/indian_FDI_September2010.pdf | By CA. Sudha G. Bhushan
  • 9. Financial Services Sector Financial Services are defined as a bundle of intangible utilities aimed at satisfying the needs of users. Financial Services bridges the gap between savers and those who need funds. A financial service perform 1. Identification of resources for efficient allocation 2. Providing constant evaluation of allotted of resources 3. Providing liquidity to investors Financial System of any country consists of financial markets, financial intermediation and financial instruments or financial products. There are multiple regulators for various financial services in India. For eg; Reserve Bank of India, IRDA Financial services in India have prevailed since time immemorial. Kautilya’s Arthashatra can said to be the first organized literature on financial service where he has amply described the rules and regulations of money and mint management. The old instruments, like hundi resemble the bill of exchange or promissory note or bearer cheque of contemporary financial markets. Financial services can be categorized into two groups, namely 1. Fund based activities and 2. Non fund based activities Fund based activities are those where there is involvement of funds like underwriting, portfolio management, venture capital, private equity, structural finance etc. Non funds based financial services are those where intellectual property is used and advices are offered. A fee or commission is charged for rendering services. The service sector in India has been witnessing a boom in recent times. In addition to the strong growth in IT/ITES, the Indian financial services sector is considered to be stable and progressive, and has been a major beneficiary of India’s growth story. The growing attractiveness of the financial services has triggered the entry of global majors. Aggressive plans of incumbents coupled with the entry of new players are expected to further drive the growth of sector. Liberalization, privatization and Globalization have further strengthened the financial services in India. | By CA. Sudha G. Bhushan
  • 10. Asset reconstruction companies Non Banking Banking - Finance Private Sector Companies Financial Credit Services Banking - Information Public Sector Companies Commodity Insurance Exchanges | By CA. Sudha G. Bhushan
  • 11. FDI Policy in Financial Services (A) Asset Reconstruction Companies ‘Asset Reconstruction Company’ (ARC) means a % of FDI CAP/Equity: - 49% of paid company registered with the Reserve Bank of up capital India under Section 3 of the Securitisation and Reconstruction of Financial Assets and Route: - Government Enforcement of Security Interest Act, 2002 (SARFAESI Act). SARFAESI Act was famed with the purpose to regulate securitization and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. As defined in the Act "asset reconstruction" means acquisition by any securitisation company or reconstruction company of any right or interest of any bank or financial institution in any financial assistance for the purpose of realisation of such financial assistance; Presently 49% of FDI is allowed in ARC under Government Route subject to following conditions as mentioned below: (i) Persons resident outside India, other than Foreign Institutional Investors (FIIs), can invest in the capital of Asset Reconstruction Companies (ARCs) registered with Reserve Bank only under the Government Route. Such investments have to be strictly in the nature of FDI. Investments by FIIs are not permitted in the equity capital of ARCs. (ii) However, FIIs registered with SEBI can invest in the Security Receipts (SRs) issued by ARCs registered with Reserve Bank. FIIs can invest upto 49 per cent of each tranche of scheme of SRs, subject to the condition that investment by a single FII in each tranche of SRs shall not exceed 10 per cent of the issue. (iii)Any individual investment of more than 10% would be subject to provisions of section 3(3) (f) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Key Players in Market: - Arcil etc | By CA. Sudha G. Bhushan
  • 12. (B) Banking –Private sector Private The Banking sector is most predominant sector in any financial system. FDI in private banking sector is allowed upto 74% including investment by FIIs. Following are the further ing including conditions: (1) The limit of 74% limit will include investment under the Portfolio Investment Scheme (PIS) by FIIs, NRIs and shares acquired prior to September 16, 2003 by erstwhile OCBs, and continue to include IPOs, Private placements, GDR/ADRs and acquisition of shares from existing shareholders. (2) The aggregate foreign investment in a private bank from all sources will be allowed up e to a maximum of 74 per cent of the paid up capital of the Bank. At all times, at least 26 per cent of the paid up capital will have to be held by residents, except in regard rega to a wholly-owned subsidiary of a foreign bank. owned (3) The stipulations as above will be applicable to all investments in existing private sector banks also. Branches A wholly- owned subsidiary a subsidiary - Investment 74% Foreing Banks in India | By CA. Sudha G. Bhushan
  • 13. (4) The permissible limits under portfolio investment schemes through stock exchanges for FIIs and NRIs will be as follows: In case of FIIs In the case of FIIs, individual FII holding is restricted to 10 per cent of the total paid-up capital, aggregate limit for all FIIs cannot exceed 24 per cent of the total paid-up capital, which can be raised to 49 per cent of the total paid -up capital by the bank concerned through a resolution by its Board of Directors followed by a special resolution to that effect by its General Body.FII investment limit is 49 per cent of the total paid-up capital. In the case of NRIs Individual holding is restricted to 5 per cent of the total paid-up capital both on repatriation and non repatriation basis and aggregate limit cannot exceed 10 per cent of the total paid- up capital both on repatriation and non-repatriation basis. However, NRI holding can be allowed up to 24 per cent of the total paid-up capital both on repatriation and non- repatriation basis provided the banking company passes a special resolution to that effect in the General Body. Private Bank with JV with Insurance sector Applications for foreign direct investment (FDI route) in private banks having joint venture/subsidiary in insurance sector may be addressed to the Reserve Bank of India (RBI) for consideration in consultation with the Insurance Regulatory and Development Authority (IRDA) in order to ensure that the 26 per cent limit of foreign shareholding applicable for the insurance sector is not being breached. Other conditions: a) Transfer of shares under FDI from residents to non-residents will continue to require approval of RBI and Government as applicable. b) The policies and procedures prescribed from time to time by RBI and other institutions such as SEBI, Department of Company Affairs and IRDA on these matters will apply as applicable. c) RBI guidelines relating to acquisition by purchase or otherwise of shares of a private bank, if such acquisition results in any person owning or controlling 5 per cent or more of the paid up capital of the private bank will apply to non-resident investors as well. | By CA. Sudha G. Bhushan
  • 14. Setting up of a subsidiary by foreign banks (a) Foreign banks will be permitted to either have branches or subsidiaries but not both. (b) Foreign banks regulated by banking supervisory authority in the home country and meeting Reserve Bank’s licensing criteria will be allowed to hold 100 per cent paid up capital to enable them to set up a wholly-owned subsidiary in India. (c) A foreign bank may operate in India through only one of the three channels viz., (i) branches (ii) a wholly-owned subsidiary and (iii) a subsidiary with aggregate foreign investment up to a maximum of 74 per cent in a private bank. (d) A foreign bank will be permitted to establish a wholly-owned subsidiary either through conversion of existing branches into a subsidiary or through a fresh banking license. A foreign bank will be permitted to establish a subsidiary through acquisition of shares of an existing private sector bank provided at least 26 per cent of the paid capital of the private sector bank is held by residents at all times. (e) A subsidiary of a foreign bank will be subject to the licensing requirements and conditions broadly consistent with those for new private sector banks. (f)Guidelines for setting up a wholly-owned subsidiary of a foreign bank to be issued separately by RBI. (g) All applications by a foreign bank for setting up a subsidiary or for conversion of their existing branches to subsidiary in India will have to be made to the RBI. At present there is a limit of ten per cent on voting rights in respect of banking companies, and this should be noted by potential investor. Key Foreign Banks in India: - ABN AMRO, Bank of America, HSBC, Deutsche Bank, Citibank India, Barclays Bank etc | By CA. Sudha G. Bhushan
  • 15. (C) Banking- Public Sector The FDI can be made subject to Banking Companies (Acquisition & Transfer of Undertakings) Acts 1970/80. This ceiling (20%) is also applicable to the State Bank of India and its associate Banks. FDI limit is 20% (FDI and Portfolio Investment) through Government route. (D) Financial Infrastructure in the Securities Market Foreign investment is permitted in infrastructure companies in Securities Markets in (a) Stock exchanges (b) Depositories and (c) Clearing corporations The investment has to be done in compliance with SEBI Regulations and subject to the following conditions: (i) There is a composite ceiling of 49 per cent for Foreign Investment, with a FDI limit of 26 per cent and an FII limit of 23 per cent of the paid-up capital; (ii) FDI will be allowed with specific prior approval of FIPB; and (iii) FII can invest only through purchases in the secondary market. (E) Commodity Exchanges A commodity exchange is a place where various commodities and derivatives are bought and sold. Commodities exchanges usually trade on commodity futures. Futures trading in commodities are regulated under the Forward Contracts (Regulation) Act, 1952. Commodity Exchanges, like Stock Exchanges, are infrastructure companies in the commodity futures market. With a view to infuse globally acceptable best practices, modern management skills and latest technology, it was decided to allow foreign investment in Commodity Exchanges. The FDI allowed in the sector is 49% including the investment from FIIs. The other conditions of investment are as follows: 1. Investment by Registered FII under Portfolio Investment Scheme (PIS) will be limited to 23% 2. Investment under FDI Scheme shall be limited to 26% 3. The investment can be made though Government Route only 4. FII purchases shall be restricted to secondary market only and 5. No non-resident investor/ entity, including persons acting in concert, will hold more than 5% of the equity in these companies. Key players: National Commodity & Derivatives Exchange Limited (NCDEX), Multi commodity exchange of India Ltd | By CA. Sudha G. Bhushan
  • 16. (F) Credit Information Companies (CIC) Credit information company means a company FDI Cap: - 49% (FDI & FII) formed and registered under the Companies Act, 1956 (1 of 1956) and which has been granted a Route: Government certificate of registration under sub-section (2) of Section 5 of Credit Information Companies (Regulation) Act, 2005. “Credit information” means any information relating to— (i) the amounts and the nature of loans or advances, amounts outstanding under credit cards and other credit facilities granted or to be granted, by a credit institution to any borrower; (ii) the nature of security taken or proposed to be taken by a credit institution from any borrower for credit facilities granted or proposed to be granted to him; (iii) the guarantee furnished or any other non-fund based facility granted or proposed to be granted by a credit institution for any of its borrowers; (iv) the creditworthiness of any borrower of a credit institution; (v) any other matter which the Reserve Bank may, consider necessary for inclusion in the credit information to be collected and maintained by credit information companies, and, specify, by notification, in this behalf; Foreign Investment in allowed till 49% under approval route. Following are further conditions: 1. Foreign investment is permitted under the Government route, subject to regulatory clearance from RBI. 2. Investment by a registered FII under the Portfolio Investment Scheme would be permitted up to 24% only in the CICs listed at the Stock Exchanges, within the overall limit of 49% for foreign investment. Such FII investment would be permitted subject to the conditions that: (a) No single entity should directly or indirectly hold more than 10% equity. (b) Any acquisition in excess of 1% will have to be reported to RBI as a mandatory requirement; and (c) FIIs investing in CICs shall not seek a representation on the Board of Directors based upon their shareholding. Players:- (a) Credit Information Bureau of India Ltd (CIBIL) (b) Equifax Credit Information Services [backed by Crisil and Tata Capital] (c) Experian Credit Information Company of India [US based] (d) Highmark Credit Information Services | By CA. Sudha G. Bhushan
  • 17. (G) Insurance The Insurance sector in India is regulated by INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY ACT, 1999. The objective of act is to provide for the establishment of an Authority to protect the interests of holders of insurance policies, to regulate, promote and ensure orderly growth of the insurance industry and for matters connected therewith or incidental thereto and further to amended the Insurance Act, 1938, the Life Insurance Corporation Act, 1956 and the General Insurance Business(Nationalisation) Act, 1972.There have been lot of changes in the sector since it has opened for private participation in 2000 following the recommendations of the Malhotra Committee report. Presently FDI upto 26% is allowed under automatic route. Other conditions are as follow: (1) FDI in the Insurance sector, as prescribed in the Insurance Act, 1999, is allowed under the automatic route. (2) This will be subject to the condition that Companies bringing in FDI shall obtain necessary license from the Insurance Regulatory & Development Authority for undertaking insurance activities. List of Private Companies in Life Insurance Name of the Private Life % of Name of the Foreign Insurance Foreign partner Company Equity Allianz Bajaj Life Insurance 26 Allianz Co. Ltd. Birla Sun Life Insurance Co. 26 Sunlife Ltd. HDFC Standard Life 18.60 Standard Life Insurance Co. Ltd. ICICI Prudential Life 26 Prudential Insurance Co. Ltd. ING Vysya Life Insurance Co. 26 ING Ltd Max New York Life Insurance 26 New York Life Co. Ltd. MetLife India Insurance Co. 25.99 Metlife Ltd. Om Kotak Mahindra Life 26 Old Mutual Insurance Co. Ltd. 26 Cardiff SBI Life Insurance Co. Ltd. | By CA. Sudha G. Bhushan
  • 18. List of Private Companies in General Insurance Name of the Private % of Name of the General Foreign Foreign partner Insurance Company Equity Royal Sundaram Alliance 26 Royal Sun Alliance Insurance Co. Ltd ICICI Lombard General 26 Lombard Insurance Co. Ltd IFFCO-Tokio General 26 Tokio Marine Insurance Co. Ltd Tata-AIG General Insurance 26 AIG Co. Ltd | By CA. Sudha G. Bhushan
  • 19. (H) Non-Banking Finance Companies (NBFC) Foreign investment in NBFC is allowed under the automatic route in the following activities: 1. Merchant Banking 2. Under Writing 3. Portfolio Management Services 4. Investment Advisory Services 5. Financial Consultancy 6. Stock Broking 7. Asset Management 8. Venture Capital 9. Custodian Services 10. Factoring 11. Leasing & Finance 12. Housing Finance 13. Forex Broking 14. Credit Card Business 15. Money Changing Business 16. Micro Credit 17. Rural Credit Minimum capitalization norms for Fund based Activities FDI Limit Minimum capitalization Capital Infusion requirement Foreign capital upto 51% US $0.5 million to be brought upfront Foreign capital more than US $ 5 million to be brought upfront 51% and upto 75% Foreign capital more than US $ 50 million US$ 7.5 million to be 75% brought upfront and the balance in 24 months. 100% foreign owned NBFCs with a minimum capitalisation of US$ 50 million can set up step down subsidiaries for specific NBFC activities, without any restriction on the number of operating subsidiaries and without bringing in additional capital. Joint Venture operating NBFCs that have 75% or less than 75% foreign investment can also set up subsidiaries for undertaking other NBFC activities, subject to the subsidiaries also complying with the applicable minimum capitalisation norm mentioned above. Minimum capitalization norms for Non Fund based Activities FDI Limit Minimum capitalization Capital Infusion requirement For all permitted non- US $0.5 million upfront fund based NBFCs irrespective of the level of foreign investment | By CA. Sudha G. Bhushan
  • 20. NBFC with Non- Fund based activities would not be permissible for such a company to set up any subsidiary for any other activity, nor it can participate in any equity of an NBFC holding/operating company. (vii) This will be subject to compliance with the guidelines of RBI. Investment advisory Services Credit rating Financial Agencies Consultancy Non-Fund Based activities Money Forex Changing Broking Business (2) Venture Capital Fund (VCF) A Foreign Venture Capital Investor (FVCI) may contribute up to 100% of the capital of an Indian Venture Capital Undertaking and may also set up a domestic asset management company to manage the fund. All such investments can be made under automatic route in terms of Schedule 6 to Notification No. FEMA 20. A SEBI registered FVCI can also invest in domestic venture capital fund registered under the SEBI (Venture Capital Fund) Regulations, 1996. Such investments would also be subject to RBI regulations and FDI policy. However, in case the entity undertaking venture capital fund activity is a Trust registered under the Indian Trust Act, 1882, FDI would be permitted under the Government route. FVCIs are also allowed to invest in other companies subject to FDI Regulations. | By CA. Sudha G. Bhushan
  • 21. Indian financial Service Sector – Growth and opportunity India is the largest democracy and 4th largest economy in the world. With its consistent growth performance and abundant high skilled man power, India provides enormous opportunities for investment, both domestic and foreign. Since the beginning of reforms in 1991, major reform initiative has been taken in the field of investment, trade, financial sector, exchange control simplification of procedure. India provides liberal, attractive and investor friendly investor. The Financial Services sector in India has emerged as a mature and sophisticated system. System which is inherently strong, functionally diverse and displays efficiency and flexibility. This is a sector which is further expected to witness increasing consolidation, sophistication and maturity in future. As compared to other developed markets, the Indian financial services sector is largely under penetrated with a huge potential for growth keeping in consideration government thrust on liberalization on one side and rising income, increasing awareness of financial products, strong equity market growth on the other. Indian Financial Services sector provides very promising investment for global investors. Backed by favorable regulatory reforms and institutional framework, robust earning of the corporate sector and a booming capital market, favorable demographics with a growing consumer and investor class, increased saving in the economy channelised into the creation of productive assets. In Financial year 09 the contribution of financial services sector to India's GDP was 15% which is the second-largest component after trade, hotels, transport and communication all combined together[as per the Banking & Finance Journal, released by an FICCI in August 2010]. The robust financial services sector and vibrant Indian Economy have given birth to plethora of emerging opportunities which are expected to gain prominence in the long term based on regulatory and market developments. | By CA. Sudha G. Bhushan
  • 22. DISCLAIMER The analysis/views in this booklet do not purport to be and should not be treated as legal opinion. **** In case of clarification please Contact at: + 091 9769033172 Email at: sudhag999@gmail.com sudha.gupta@icai.org Blog: http://casudhafema.blogspot.com/ | By CA. Sudha G. Bhushan