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Manak Chand Ji Pitarji Ki Jai
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Chartered Accountant Delhi

A trustworthy name, A Chandak & Company is a professionally managed, services oriented and knowledge based Chartered Accountant Firm.


FOREIGN DIRECT INVESTMENT
Any company set up with Foreign Direct Investment (FDI) has to be incorporated under the Indian Companies Act with the Registrar of Companies and all Indian operations would be conducted through this company. Preference shares convertible into equity shares will be included in calculating the Foreign Direct Investment (FDI) Limits. Non-convertible redeemable preference shares are not included for calculating Foreign Direct Investment (FDI) limit.

Manner of Investment
Foreign companies can make investments or operate their business in a number of ways as given below: -
1. Liaison/representative office
2. Project Office
3. Branch Office.
4. 100% Wholly owned subsidiary
5. Joint venture company

Sectors/Activities prohibited/restricted under Foreign Direct Investment (FDI) Policy

(A) List of Activities for which Automatic Route of RBI for investment from person resident outside India is not available


1. Petroleum Sector (except for private sector oil refining), Natural Gas / LNG Pipelines.
2. Investing companies in Infrastructure & Services Sector.
3. Defence and Strategic Industries.
4. Atomic Minerals.
5. Print Media.
6. Broadcasting.
7. Postal services.
8. Courier Services.
9. Establishment and Operation of satellite.
10. Development of Integrated Township.
11. Tea Sector.
12. Asset Reconstruction Companies.

(B) List of activities or items for which Foreign Direct Investment (FDI) is prohibited
1. Retail Trading
2. Atomic Energy
3.
Lottery Business
4. Gambling and Betting
5. Housing and Real Estate business
6. Agriculture (excluding Floriculture, Horticulture, Development of seeds, Animal Husbandry, Pisiculture and Cultivation of vegetables, mushrooms etc. under controlled conditions and services related to agro and allied sectors) and Plantations (Other than Tea plantations)


Sectoral Cap on Investments by Persons Resident Outside India

S. No. Sector Investment Cap Description of Activity/Items/Conditions
1. Private Sector Banking NIL Subject to guidelines issued by RBI from time to time
2. Non-Banking Financial Companies 100% Foreign Direct Investment (FDI) /NRI investments allowed in the following 19 NBFC activities shall be as per the levels indicated below :

a) Activities covered

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. Custodial Services
10. Factoring
11. Credit Reference Agencies
12. Credit Rating Agencies
13. Leasing & Finance
14. Housing Finance
15. Forex-broking
16. Credit Card Business
17. Money-changing Business
18. Micro-credit
19. Rural credit

b) Minimum Capitalisation norms for fund based NBFCs

i) for Foreign Direct Investment (FDI) upto 51%, US $ 0.5 million to be brought in upfront

ii) If the Foreign Direct Investment (FDI) is above 51 % and upto 75 %, US $ 5 million to be brought upfront
iii) If the Foreign Direct Investment (FDI) is above 75 % and upto 100 %, US $ 50 million out of which $ 7.5 million to be brought in upfront and the balance in 24 months

c) Minimum Capitalisation norms for non-fund based activities Minimum Capitalisation norm of US$0.5 million is applicable in respect of non-fund based NBFCs with foreign investment .

d) Foreign investors can set up 100% operating subsidiaries without the condition to disinvest a minimum of 25% of its equity to Indian entities, subject to bringing in US $ 50 million as at b) (iii) above (without any restriction on number of operating subsidiaries without bringing in additional capital)

e) Joint Venture operating NBFCs that have 75% or less than 75% foreign investment will also be allowed to set up subsidiaries for undertaking other NBFC activities, subject to the subsidiaries also complying with the applicable minimum capital inflow i.e., (b)(i) and (b)(ii) above.

f) Foreign Direct Investment (FDI) in the NBFC sector is put on automatic route subject to compliance with guidelines of the Reserve Bank of India. RBI would issue appropriate guidelines in this regard.

3. Insurance NIL Foreign Direct Investment (FDI) upto 26% in the Insurance sector is allowed on the automatic route subject to obtaining license from Insurance Regulatory & Development Authority (IRDA)
4. Telecommunications 49% I. In basic, Cellular, Value Added Services, and Global Mobile Personal Communications by Satellite, Foreign Direct Investment (FDI) is limited to 49% subject to licensing and security requirements and adherence by the companies (who are investing and the companies in which the investment is I.being made) to the license conditions for foreign equity cap and lock-in period for transfer and addition of equity and other license provisions.

II. ISP with gateways, radio paging and end-to-end bandwidth, Foreign Direct Investment (FDI) is permitted upto 74% with Foreign Direct Investment (FDI), beyond 49% requiring Government approval. These services would be subject to licensing and security requirements

III. No equity cap is applicable to manufacturing activities.

IV. Foreign Direct Investment (FDI) upto 100% is allowed for the following activities in the telecom sector:
(a)ISPs not providing gateways (both for satellite and submarine cables)
(b)Infrastructure Providers providing dark fibre (IPCategory 1) c) Electronic Mail, and
d) Voice Mail

The above would be subject to the following conditions

(a)Foreign Direct Investment (FDI) upto 100% is allowed subject to the condition that such companies would divest 26% of their equity in favour of Indian public in 5 years, if these companies are listed in other parts of the world.
(b)The above services would be subject (a)to licensing and security requirements, wherever required.
(b)Proposal for Foreign Direct Investment (FDI) beyond 49% shall be considered by FIPB on case-to-case basis.

5. (i) Petroleum Refining (Private Sector) 100% Foreign Direct Investment (FDI) permitted upto 100 % in case of private Indian companies.
  (ii) Petroleum Product Marketing 100% Subject to the existing sectoral policy and regulatory framework in the oil-marketing sector.
  (iii) Oil Exploration in both small and medium sized fields 100% Subject to and under the policy of Government on private participation in – a) exploration of oil and b) the discovered fields of national oil companies.
(iv) Petroleum Product Pipelines 100% Subject to and under the Government Policy and regulations thereof.
6. Housing and Real Estate 100% ONLY NRIs are allowed to invest in the areas listed below:
(a)Development of serviced plots and construction of built-up residential premises
(b)Investment in real estate covering construction of residential and commercial premises including business centers and offices.
(c)Development of townships
(d)City and regional level urban infrastructure facilities including both (a)roads and bridges
(b)Investment in manufacture of building materials
(c)Investment in participatory ventures in (a) to (e) above
(d)Investment in housing finance institutions which is also opened to Foreign Direct Investment (FDI) as an NBFC.
7. Coal and Lignite;   i)Private Indian companies setting up or operating power projects as well as coal and lignite mines for captive consumption are allowed Foreign Direct Investment (FDI) upto 100%.
ii)100% Foreign Direct Investment (FDI) is allowed for setting up coal
processing plants subject to the condition that the company shall not do coal mining and shall not sell washed coal or sized coal from its coal processing plants in the open market and shall supply the washed or sized coal to those parties who are supplying raw coal to coal processing plants for washing or sizing.
iii)Foreign Direct Investment (FDI) upto 74% is allowed for exploration or mining of coal or lignite for captive consumption.
iv)In all the above cases, Foreign Direct Investment (FDI) is allowed upto 50% under the automatic route subject to the condition that such investment shall not exceed 49%of the equity of a PSU.
8. Venture Capital Fund (VCF) and Venture Capital Company (VCC)   Offshore Venture Capital Funds/companies are allowed to invest in domestic venture capital undertaking as well as other companies through the automatic route, subject only to SEBI regulations and sector specific caps on Foreign Direct Investment (FDI).
9. Trading   rading is permitted under automatic route with Foreign Direct Investment (FDI) upto 51% provided it is primarily export activities, and the undertaking is an export house/ trading house / super trading house/ star trading house. However, under the FIPB route:
i) 100% Foreign Direct Investment (FDI) is permitted in case of trading companies for the following activities:
a) exports;
b) bulk imports with export/ ex-bonded
warehouse sales; c) cash and carry wholesale trading;
d) other import of goods or services provided at least 75% is for procurement and sale of the same group and not for third party use or onward transfer/ distribution/sales.

ii) The following kinds of trading are also permitted, subject to provisions of Exim Policy.
(a)Companies for providing after sales services
(b)manufactured products on behalf of their joint ventures in which they have equity participation in India.
(c)Trading of hi-tech items/items requiring (a)specialized after sales services.
(b)Trading of items for social sector
(c)Trading of hi-tech, medical and diagnostic items
(d)Trading of items sourced from the small scale sector under which, based on technology provided and laid down quality
specifications, a company can market that item under its brand name
(e)Domestic sourcing of products for exports
(f)Test marketing of such items for which a company has approval for manufacture provided such test marketing facility will be for a period of two years, and investment in setting up manufacturing facilities commences simultaneously with test marketing.

(a)Foreign Direct Investment (FDI) upto 100% permitted for e-commerce activities subject to the condition that such companies would divest 26% of their equity in favour of the Indian public in five years, if these companies are listed in other parts of the world. Such companies would engage only in business to business (B2B) e-commerce and not in retail trading.
10. Power 100% Foreign Direct Investment (FDI) allowed upto 100 % in respect of projects relating to electricity generation, transmission and distribution, other than atomic reactor power plants. There is no limit on the project cost and quantum of foreign direct investment.
11 Drugs & Pharmaceuticals 100% Foreign Direct Investment (FDI) permitted upto 100% for manufacture of drugs and pharmaceuticals provided the activity does not attract compulsory licensing or involve use of recombinant DNA technology and specific cell/tissue targeted formulations. Foreign Direct Investment (FDI) proposals for the manufacture of licensable drugs and pharmaceuticals and bulk drugs produced by recombinant DNA technology and specific cell/tissue targeted formulations will require prior Govt. approval.
12. Road and highways, Ports and harbours 100% In projects for construction and maintenance of roads, highways, vehicular bridges, toll roads, vehicular tunnels, ports and harbours.
13. Hotel & Tourism 100% The term hotels include restaurants, beach resorts and other tourist complexes providing accommodation and/ or catering and food facilities to tourists. Tourism related industry include travel agencies, tour operating agencies and tourist transport operating agencies, units providing facilities for cultural, adventure and wild life experience to tourists, surface, air and water transport facilities to tourists, leisure, entertainment, amusement, sports and health units for tourists and Convention/Seminar units and organisations. For foreign technology agreements, automatic approval is granted if

I.Upto 3% of the capital cost of the project is proposed to be paid for technical and consultancy
II.Upto 3% of the net turnover is payable for franchising and marketing/publicity support fee, and Upto 10% of gross operating profit is payable for management fee, including incentive fee
14. Mining 74% i) For exploration and mining of diamonds and precious stones Foreign Direct Investment (FDI) is allowed upto 74 % under automatic route
    100% ii) For exploration and mining of gold and silver and minerals other than diamonds and precious stones, metallurgy and processing Foreign Direct Investment (FDI) is allowed upto 100 % under automatic route
      iii) Press Note 18 (1998 series) dated 14/12/98 would not be applicable for setting up 100 % owned subsidiaries in so far as the mining sector is concerned, subject to a declaration from the applicant that he has no existing joint venture for the same area and/or the particular mineral.
15. Advertising 100% Advertising sector - Foreign Direct Investment (FDI) upto 100% allowed on the automatic route 
16. Films 100% Film Sector (Film production, exhibition and distribution including related services/products) Foreign Direct Investment (FDI) upto 100% allowed on the automatic route with no entry-level condition
17. Airports 74% Govt. approval required beyond 74%
18. Mass Rapid Transport Systems  100% Foreign Direct Investment (FDI) upto 100% is permitted on the automatic route in mass rapid transport system in all metros including associated real estate development
19. Pollution Control & Management 100% In both manufacture of pollution control equipment and consultancy for integration of pollution control systems is permitted on the automatic route.
20. Special Economic Zones 100% All manufacturing activities except:
(i)Arms and ammunition , Explosives and allied items of defence equipments, Defence aircrafts and warships,
(ii)Atomic substances, Narcotics and Psychotropic Substances and hazardous Chemicals,
(iii)Distillation and brewing of Alcoholic drinks and
(iv)Cigarette/cigars and manufactured tobacco substitutes.
21. Any other Sector/ Activity 100 % if not included in Annexure A
22. Air Transport Services (Domestic Airlines) 100% for NRIs 49% for others No direct or indirect equity participation by foreign airlines is allowed
23. Townships, housing, built-up infrastructure and construction - development projects The sector would include, but not be restricted to, housing, commercial premises, hotels, resorts, hospitals, educational institutions, recreational facilities, city and regional level infrastructure. 100% The investment shall be subject to the following guidelines:

(a) Minimum area to be developed under each project shall be as under :
(i)In case of development of serviced housing plots - 10 hectares.
(ii)In case of construction -development project - 50,000 sq.mtrs.
(iii)In case of combination project, any one of the above two conditions.

(b) The investment shall be subject to the following conditions:
(i)Minimum capitalization of US $ 10 Million for wholly owned subsidiaries and US $ 5 Million for joint ventures with Indian partners. The funds would have to be brought in within six months of commencement of business of the Company.
(ii)Original investment cannot be (i)repatriated before a period of three years from completion of minimum capitalization. However, the investor may be permitted to exit earlier with prior approval of the Government through the FIPB.

(c) At least 50% of the project must be developed within a period of five years from the date of obtaining all statutory clearances. The investor shall not be permitted to sell undeveloped plots.

(d) The project shall conform to the norms and standards, as laid down in the applicable building control regulations, bye-laws, rules, and other regulations of the State Government / Municipal / Local Body concerned.

(e) The investor shall be responsible for obtaining all necessary approvals, including those of the building / layout plans, developing internal and peripheral

areas and other infrastructure facilities, payment of development, external development and other charges and complying with all other requirements as prescribed under applicable rules / bye-laws / regulations of the State Government / Municipal / Local Body concerned.

(f) The State Government / Municipal / Local Body concerned, which approves the building /development plans, shall monitor compliance of the above conditions by the developer.

Note: For the purpose of these guidelines, "undeveloped plots" will mean where roads, water supply, street lighting, drainage, sewerage, and other conveniences, as applicable under prescribed regulations, have not been made available. It will be necessary that the investor provides this infrastructure and obtains the completion certificate from the concerned local body / service agency before he would be allowed to dispose of serviced housing plots.

Foreign Direct Investment in Small Scale Sector.
Equity participation in the Small Scale Sector up to 24% by any other Industrial undertaking is allowed. For equity participation in excess of this or if a non-SSI unit whishes to manufacture a reserved item, it would be required to obtain industrial licence and undertake a minimum export obligation of 50% of production.

Whether preference shares to be included in Foreign Direct Investment.
Yes, if it is convertible in to equity shares will be included in calculating the Foreign Direct Investment (FDI) Limits. Non-convertible redeemable preference shares are not included for calculating Foreign Direct Investment (FDI) limit.
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