FEMA Regulatory guide

Law Relating Foreign Exchange Management

  • FEMA 1999:
    • Objective: Facilitate external trade/payments, promote forex market development.
    • Central legislation for inbound/outbound investments and international trade.
  • Key Definitions:
    • Foreign Exchange: Includes foreign currency, deposits, credits, and negotiable instruments in foreign currency [Section 2(n)].
    • Foreign Security: Securities denominated in foreign currency, including those with returns payable in Indian currency [Section 2(o)].
    • Person: Includes individuals, HUFs, companies, firms, associations, agencies, and juridical persons [Section 2(u)].
    • Person Resident in India: Defined based on physical presence (>$182$ days) and intention, with exclusions for employment/business abroad [Section 2(v)].
    • 'Repatriate to India’ means bringing into India the realised foreign exchange.
  • Current Account Transactions:
    • All transactions that are not capital account transactions.
    • Include payments for short-term banking, interest on loans, investment income, remittances for living expenses, and travel/education/healthcare expenses.
  • Prohibited Transactions:
    • Remittances from lottery winnings or income from racing.
    • Payments for lottery tickets, banned magazines, football pools.
    • Commissions on exports under Rupee State Credit Route (exceptions for tea/tobacco).
    • 'Call back service' payments and interest on Non-resident Special Rupee Scheme Accounts.
  • Transactions Requiring RBI Approval:
    • Donations exceeding $1\%$ of past 3 years' forex earnings or $5,000,000\$5,000,000, whichever is less.
    • Commissions to agents exceeding $25,000\$25,000 or $5\%$ of inward remittance for property sales.
    • Consultancy service remittances exceeding $10,000,000\$10,000,000 for infrastructure projects, $1,000,000\$1,000,000 for others.
    • Reimbursement of pre-incorporation expenses exceeding $5\%$ of investment or $100,000\$100,000, whichever is higher.
  • Liberalised Remittance Scheme (LRS):
    • Resident individuals can remit up to $250,000\$250,000 per financial year for permitted current or capital account transactions.
    • Not available to corporates, partnership firms, HUF, Trusts, etc.
  • Capital Account Transactions:
    • Transactions altering assets or liabilities outside India for Indian residents or in India for non-residents.
    • Examples: Investments in foreign securities, property transfers, loans, and guarantees [Section 6(3)(a)].
  • Repatriation of Foreign Exchange:
    • Must be brought into India and sold to an authorized person for rupees.
    • May be retained in an account with an authorized dealer, subject to RBI limits.
    • Can be used to discharge forex-denominated debts.
  • Surrender of Foreign Exchange:
    • Unspent forex from foreign travel (excluding individuals) must be surrendered.
    • Within 90 days if in currency notes/coins, 180 days for traveler's checks.
  • Remittance of Assets:
    • AD may allow remittance of assets by a foreign national (retired, inherited) up to $1 million per financial year
  • Remittance of Assets Requiring RBI Approval:
    • Exceeding $1,000,000\$1,000,000 per financial year due to legacy, bequest, or inheritance to a citizen of a foreign state.
  • Manner of Receipt and Payment:
    • Transactions between residents and non-residents must be through authorized banks/persons.
    • Trade with Nepal/Bhutan generally in Indian Rupees; with ACU countries via ACU mechanism.
  • Acquisition/ Transfer of Immovable Property by NRI or an OCI
    • NRIs/OCIs can purchase any immovable property in India (except agricultural land, plantation property, farm house).
  • Obligations of Exporters:
    • Furnish declaration of export value to RBI or authorized authority.
  • Adjudication and Appeal:
    • Central Government appoints Adjudicating Authorities for inquiries.
    • Appeals can be made to Special Director (Appeals), then to the Appellate Tribunal.
    • High Court appeal on questions of law within 60 days.
  • Directorate of Enforcement:
    • Enforces FEMA, investigates contraventions.
  • Contravention and Penalties:
    • Penalties up to three times the sum involved; confiscation of equivalent value.
    • Imprisonment up to 5 years with fine.
  • Contravention by Companies:
    • Every person in charge of the company is deemed guilty unless they prove lack of knowledge or due diligence.
  • Reserve Bank of India (RBI):
    • Empowered to issue directions to authorized persons.
    • Regulates currency, credit system, and foreign exchange.