By K P C Rao., LLB., FCMA., FCS
Practicing Company Secretary
kpcrao.india@gmail.com
INTRODUCTION
India’s conscious shift in the early 1990s from an inward-looking development strategy to a globalized market-based approach resulted in significant changes in its foreign investment policy. Till the 1990s, the policy was heavily restrictive with majority foreign equity permitted only in a handful export-oriented, high technology industries. Outward-oriented reforms radically changed such perceptions with foreign investment policy becoming progressively liberal following steady withdrawal of external capital controls and simplification of procedures.
India’s present policy framework for inward FDI was introduced by the Industrial Policy Statement of July 24, 1991. The framework has subsequently evolved and enlarged in line with reforms and structural developments in the economy. The present policy allows foreign investors to invest in resident entities through either the automatic route or the government-administered route. Most sectors and activities qualify for the automatic route. This route allows investors to bring in funds without obtaining prior permission from the Government, RBI, or any other regulatory agency.
Certain investment intentions do not qualify under automatic route and require prior permission from the government. There are also sectors/activities where despite being eligible for automatic route, foreign investment is subject to other caveats. Though almost all of manufacturing is fully open to foreign investment, limitations on extent of foreign ownership (measured by proportion of equity capital belonging to non-resident entities) prevail in several services. Most of India’s agriculture is closed to foreign investment except[1] some segments, while it is prohibited in atomic energy, lottery business, gambling & betting and retail trading (except single-brand retailing).
The present policy permits foreign investors to collaborate with local partners as well as establish wholly owned subsidiaries (WOSs). Both joint ventures and WOSs can be incorporated as resident enterprises under the Indian Companies Act (1956). India does not restrict repatriation of investments, dividends and profits. Non-resident investors can dispose equity shares without prior government permission. They are also allowed to purchase immovable property in India after acquiring permission for doing business as incorporated/unincorporated entities.
A major policy revamp occurred in February 2000. The automatic route was significantly expanded to make FDI in all items/activities eligible for the route except a well-defined ‘negative list’. The latter included industries requiring licenses under the Industries (Development and Regulation) Act of 1951 and in terms of locational policy requirements of the Industrial Policy of 1991, proposals involving FDI higher than 24 percent of equity in small-scale enterprises, instances where foreign collaborator had previous venture/tie-up in India, cases relating to acquisition of shares in resident Indian companies in favour of foreign/NRI/OCB investors and all proposals falling outside notified sectoral policy/caps relating to the automatic route, or in sectors where FDI was not permitted. The ‘negative list’ proposals were to be examined by FIPB.
Liberalization of FDI policies has been a part of reforms aiming to remove controls on industrial output. A key reform in this regard has been reduction of the scope of the public sector. India’s industrialization during the first four decades of its planned development was led by the public sector. Public enterprises dominated the basic and heavy segments of manufacturing (e.g. steel, cement and coal). While consumer goods and intermediates had sizeable presence of small and medium private enterprises, key services (e.g. electricity, telecommunication, road transport, aviation, shipping, banking, insurance) were monopolized by state agencies. Effective entry of foreign investors in the Indian economy was inconceivable till the scope of the public sector was reduced and private enterprise allowed to fill up the vacuum. The Industrial Policy of 1991 limited public sector monopoly to only eight activities while freeing up the rest. Subsequently state monopoly has been cramped to only sectors of strategic importance such as atomic energy. Private initiative and foreign investment has been allowed in most of the erstwhile domain of the public sector including ‘sensitive’ segments such as defense, insurance, petroleum & natural gas.
In a significant move, 100 percent foreign ownership under automatic route was allowed in electricity generation, transmission, and distribution in June 1998. However, the projects were capped at a maximum of`15 billion. Within less than a year in January 1999, projects for construction and maintenance of roads, highways, vehicular bridges, toll roads, vehicular tunnels, ports and harbours were permitted 100 percent FDI under automatic route subject to same limitations on size. Permission of full foreign ownership underlined the urgency of inviting funds in India’s infrastructure. Since then, almost all manufacturing activities and several services have been allowed to access 100 percent FDI under automatic route.
The gradual ease of entry enabled to foreign investors through the automatic route marks another key reform in India’s foreign investment policy. The automatic route is a simpler route than the government-administered (FIPB) process. Since the latter involves acquiring prior permission before the investor can bring in funds, there are more procedures involved entailing greater transaction costs. For almost a decade, however, the scope of the automatic route remained relatively restricted.
THE CONSOLIDATED FDI POLICY-2012
The consolidated FDI policy document is a single reference point for investors and regulators. The first such consolidation was released the Department of Industrial Policy and Promotion (DIPP) in March, 2010 after which it has been updated every six months. This ‘Circular 1 of 2012’-is the fifth edition of the consolidated policy document and applicable with effect from 10 April 2012. DIPP has also clarified that in the light of significant rationalisation of FDI norms, the FDI policy would henceforth be reviewed on yearly basis.
Prohibited Sectors
FDI is prohibited in:
a) Retail Trading (except single brand product retailing)
b) Lottery Business including Government /private lottery, online lotteries, etc.
c) Gambling and Betting including casinos etc.
d) Chit funds
e) Nidhi company
f) Trading in Transferable Development Rights (TDRs)
g) Real Estate Business or Construction of Farm Houses
h) Manufacturing of Cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes
i) Activities / sectors not open to private sector investment e.g. Atomic Energy and Railway Transport (other than Mass Rapid Transport Systems).
Foreign technology collaboration in any form including licensing for franchise, trademark, brand name, management contract is also prohibited for Lottery Business and Gambling and Betting activities.
Permitted Sectors
In certain sectors/activities, FDI up to the limit indicated against each sector/activity is allowed, subject to applicable laws/ regulations; security and other conditionalities. (See the Table given below) In sectors/activities FDI is permitted upto 100% on the automatic route, subject to applicable laws/ regulations; security and other conditionalities.
Wherever there is a requirement of minimum capitalization, it shall include share premium received along with the face value of the share, only when it is received by the company upon issue of the shares to the non-resident investor. Amount paid by the transferee during post-issue transfer of shares beyond the issue price of the share, cannot be taken into account while calculating minimum capitalization requirement.
The highlights the key changes introduced in the Department of Industrial Policy and Promotion (DIPP) Circular are:
Key amendments/Clarification
1) Import of capital goods/ machinery/ equipment
At present, conversion to equity is permitted for import of capital goods/ machinery/ equipment (including second-hand machinery). It has been represented before Government that the Indian capital goods sector, including the machine tools industry, construction machinery and textile machinery, has been suffering because of import of cheaper second hand machinery, which is often sub-standard. With a view to incentivising machinery embodying state-of-the-art technology, compliant with international standards, in terms of being green, clean and energy efficient, secondhand machinery has now been excluded from the purview of this provision.
2) Non-Banking Finance Companies (NBFC) – clarification
The Circular clarifies that the activity of leasing and finance covered within the ambit of 18 permissible NBFC activities eligible for FDI under automatic route covers only ‘Financial leases’ and not ‘Operating Leases’. This provision intends to clarify the coverage of the term ‘leasing and finance’, insofar as the NBFC sector is concerned.
3) FDI in Commodity Exchanges
At present, foreign investment, within a composite (FDI & FII) cap of 49%, under the Government approval route-i.e. through the Foreign Investment Promotion Board (FIPB)-is permitted in commodity exchanges. Within this overall limit of 49%, investment by Registered FIIs, under the Portfolio Investment Scheme (PIS) is limited to 23% and investment under the FDI Scheme is limited to 26%. It has now been decided to liberalise the policy and to mandate the requirement of Government approval only for FDI component of the investment. Such investment by FIIs, in commodity exchanges, will, therefore, no longer require Government approval. This change aligns the policy for foreign investment in commodity exchanges, with that of other infrastructure companies in the securities markets, such as stock exchanges, depositories and clearing corporations.
4) Clarification on investment by FIIs
The existing exchange control regulations permits a FII to invest in the capital of an Indian Company under the PIS with overall ceiling of 10 percent of the Capital for individual FII and aggregate ceiling of 24 percent for FII investment. This aggregate ceiling may further be increased upto sectoral cap/ statutory ceiling, as applicable to the Indian Company by passing a Board Resolution followed by Special Resolution at its Annual General Meeting. It has now been clarified that this would also be subject to prior intimation to Reserve Bank of India (RBI).
5) Investment by Foreign Venture Capital Investors (FVCIs)
Government has permitted FVCIs to invest in the eligible securities (equity, equity linked instruments, debt, debt instruments, debentures of an IVCU or VCF, units of schemes / funds set up by a VCF) by way of private arrangement / purchase from a third party also, subject to stipulated terms and conditions. SEBI registered FVCIs have also been permitted to invest in securities on a recognized stock exchange subject to the provisions of the SEBI (FVCI) Regulations, 2000. These provisions have now been reflected under the FDI policy as well.
6) Investment by ‘Qualified Financial Investors (QFIs)’
Government has permitted QFIs to invest (DPs), in equity shares of listed Indian companies as well as in equity shares of Indian companies which are offered to public in India in terms of the relevant and applicable SEBI guidelines/regulations. QFls have also been permitted to acquire equity shares by way of right shares, bonus shares or equity shares, on account of stock split/consolidation or equity shares on account of amalgamation, demerger or such corporate actions, subject to the prescribed investment limits. These provisions have now been reflected under the FDI policy as well.
7) General permission for transfer of shares and convertible debentures
The liberalised policy on transfer of shares/ convertible debentures of companies engaged in the financial services sector has now been reflected under FDI policy.
8) Changes in FDI policy in single-brand retail trading and pharmaceuticals sector
The policy regarding Single Brand retail trading has been liberalized and now FDI, up to 100%, is permitted, under the Government route, subject to specified conditions, as per Press Note 1(2012) issued on 10.1.2012. Accordingly, the revised provisions have been incorporated in the Circular. The provisions of Press Note 3 of 2011, dated 8.11.2011, have also been incorporated in the Circular.
9) Liberalised policy on transfer of shares
Liberalised policy on transfer of shares between Non-resident and Resident in case of nonadherence to pricing norms, transfer requiring prior Government Approval and companies engaged in financial services sector.
CONCLUSION
While India has an overall market-friendly and liberal policy towards foreign investment, foreign capital still does not enjoy equally porous access in all parts of the economy. Fairly unhindered access to manufacturing is accompanied by conspicuous lack of access in certain services and agriculture. India’s future foreign investment policy faces the critical challenge of increasing access of foreign capital to these segments for enhancing inward FDI.
The existing pattern of inward FDI into India does point to the possibility of substantive increase in investment following further liberalization. FDI inflows in India have been concentrating mostly in services. Financial and non-financial services, computer software, telecommunications, housing and construction have been the top drawers of FDI during April 2000 – March 2009. The services orientation of inward FDI vindicates arguments for greater liberalization of foreign investment policies in services. Despite being relatively more restricted than manufacturing, India’s services are drawing significant FDI due to undisputed virtues of large domestic market and skilled human resources. Manufacturing is unable to do so in spite of more liberal entry rules primarily on account of persistence of high transaction costs arising from poor infrastructure, inflexible labour policies in the formal sector and opaque land markets.
Structural changes within the economy also point to a larger role of foreign investment in some sectors. Insurance is a key area in this respect. Rising life expectancy and greater healthcare costs have increased demand for a variety of life and non-life, equity market linked insurance products. Global insurance majors with a diverse product portfolio can make a major difference in this regard. India’s aviation industry, particularly the low-cost segment, can benefit from foreign funds and managerial expertise at a time when it is struggling to recover from financial difficulties. India’s agriculture, on the other hand, is in dire need of investments for enhancing productivity and improving infrastructure, particularly in storage, conservation and transmission of farm produce. Foreign investment again can play a critically important role in augmenting capacities.
India has been able to provide an enabling environment to foreign investors in several respects. Deep reforms in capital markets aided by an efficient regulatory architecture have facilitated portfolio investments. Transfer and acquisition of shares are taking place according to investor-friendly guidelines. Foreign exchange regulations have been aligned to global standards courtesy FEMA. But these facilitations need to be matched by a more open foreign investment policy for increasing FDI inflows to a level higher than their current share of only 3 percent of India’s GDP. A more open policy calls for committed political consensus on foreign investment. Such an accord has proved elusive so far. However, given that India’s reforms have been irreversible notwithstanding political discord, hopes of further reforms in foreign investment are not entirely farfetched.
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TABLE
INDIA’S FDI POLICY, 2012
(Sector-Specific Guidelines and Conditions)
Sl.No.
|
Sector/Activity
|
% of FDI Cap/Equity
|
Entry Route
| |||||
AGRICULTURE
| ||||||||
6.2.1
|
Agriculture & Animal Husbandry
| |||||||
a) Floriculture, Horticulture, Apiculture and Cultivation of Vegetables & Mushrooms under controlled conditions;
b) Development and production of Seeds and planting material;
c) Animal Husbandry (including breeding of dogs), Pisciculture, Aquaculture, under controlled conditions; and
d) services related to agro and allied sectors
Note: Besides the above, FDI is not allowed in any other agricultural sector/activity 100% Automatic
|
100%
|
Automatic
| ||||||
6.2.1.1
|
Other conditions:
| |||||||
I. For companies dealing with development of transgenic seeds/vegetables, the following conditions apply:
(i) When dealing with genetically modified seeds or planting material the company shall comply with safety requirements in accordance with laws enacted under the Environment (Protection) Act on the genetically modified organisms.
(ii) Any import of genetically modified materials if required shall be subject to the conditions laid down vide Notifications issued under Foreign Trade (Development and Regulation) Act, 1992.
(iii) The company shall comply with any other Law, Regulation or Policy governing genetically modified material in force from time to time.
(iv) Undertaking of business activities involving the use of genetically engineered cells and material shall be subject to the receipt of approvals from Genetic Engineering Approval Committee (GEAC) and Review Committee on Genetic Manipulation (RCGM).
(v) Import of materials shall be in accordance with National Seeds Policy.
II. The term under controlled conditions covers the following:
‘Cultivation under controlled conditions‘ for the categories of Floriculture, Horticulture, Cultivation of vegetables and Mushrooms is the practice of cultivation wherein rainfall, temperature, solar radiation, air humidity and culture mvedium are controlled artificially. Control in these parameters may be effected through protected cultivation under green houses, net houses, poly houses or any other improved infrastructure facilities where micro-climatic conditions are regulated anthropogenically.
o Rearing of animals under intensive farming systems with stall-feeding. Intensive farming system will require climate systems (ventilation, temperature/humidity management), health care and nutrition, herd registering/pedigree recording, use of machinery, waste management systems.
o Poultry breeding farms and hatcheries where micro-climate is controlled through advanced technologies like incubators, ventilation systems etc.
o Aquariums
o Hatcheries where eggs are artificially fertilized and fry are hatched and incubated in an enclosed environment with artificial climate control.
conditions‘ covers –
o Prodution of honey by bee-keeping, except in forest/wild, in designated spaces with control of temperatures and climatic factors like humidity and artificial feeding during lean seasons.
| ||||||||
6.2.2
|
Tea Plantation
| |||||||
6.2.2.1
|
Tea sector including tea plantations
Note: Besides the above, FDI is not allowed in any other plantation sector/activity
|
100%
|
Government
| |||||
6.2.2.2
|
Other conditions:
| |||||||
(i) Compulsory divestment of 26% equity of the company in favour of an Indian partner/Indian public within a period of 5 years
(ii) Prior approval of the State Government concerned in case of any future land use change.
| ||||||||
6.2.3
|
MINING
| |||||||
6.2.3.1
|
Mining and Exploration of metal and non-metal ores including diamond, gold, silver and precious ores but excluding titanium bearing minerals and its ores; subject to the Mines and Minerals (Development & Regulation) Act, 1957.
|
100%
|
Automatic
| |||||
6.2.3.2
|
Coal and Lignite
| |||||||
(1) Coal & Lignite mining for captive consumption by power projects, iron & steel and cement units and other eligible activities permitted under and subject to the provisions of Coal Mines (Nationalization) Act, 1973
|
100%
|
Automatic
| ||||||
(2) Setting up coal processing plants like washeries 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.
|
100%
|
Automatic
| ||||||
6.2.3.3
|
Mining and mineral separation of titanium bearing minerals and ores, its value addition and integrated activities
| |||||||
6.2.3.3.1
|
Mining and mineral separation of titanium bearing minerals & ores, its value addition and integrated activities subject to sectoral regulations and the Mines and Minerals (Development and Regulation Act 1957)
|
100%
|
Government
| |||||
6.2.3.3.2
|
Other conditions:
| |||||||
India has large reserves of beach sand minerals in the coastal stretches around the country. Titanium bearing minerals viz. Ilmenite, rutile and leucoxene, and Zirconium bearing minerals including zircon are some of the beach sand minerals which have been classified as prescribed substances under the Atomic Energy Act, 1962.
Under the Industrial Policy Statement 1991, mining and production of minerals classified as prescribed substances and specified in the Schedule to the Atomic Energy (Control of Production and Use) Order, 1953 were included in the list of industries reserved for the public sector. Vide Resolution No. 8/1(1)/97-PSU/1422 dated 6th October 1998 issued by the Department of Atomic Energy laying down the policy for exploitation of beach sand minerals, private participation including Foreign Direct Investment (FDI), was permitted in mining and production of Titanium ores (Ilmenite, Rutile and Leucoxene) and Zirconium minerals (Zircon).
Vide Notification No. S.O.61(E) dated 18.1.2006, the Department of Atomic Energy re-notified the list of prescribed substances under the Atomic Energy Act 1962. Titanium bearing ores and concentrates (Ilmenite, Rutile and Leucoxene) and Zirconium, its alloys and compounds and minerals/concentrates including Zircon, were removed from the list of prescribed substances.
(i) FDI for separation of titanium bearing minerals & ores will be subject to the following additional conditions viz.:
(A) value addition facilities are set up within India along with transfer of technology;
(B) disposal of tailings during the mineral separation shall be carried out in accordance with regulations framed by the Atomic Energy Regulatory Board such as Atomic Energy (Radiation Protection) Rules, 2004 and the Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987.
(ii) FDI will not be allowed in mining of “prescribed substances”. listed in the Notification No. S.O. 61(E) dated 18.1.2006 issued by the Department of Atomic Energy.
Clarification: (1) For titanium bearing ores such as Ilmenite, Leucoxene and Rutile, manufacture of titanium dioxide pigment and titanium sponge constitutes value addition. Ilmenite can be processed to produce 'Synthetic Rutile or Titanium Slag as an intermediate value added product.
(2) The objective is to ensure that the raw material available in the country is utilized for setting up downstream industries and the technology available internationally is also made available for setting up such industries within the country. Thus, if with the technology transfer, the objective of the FDI Policy can be achieved, the conditions prescribed at (i) (A) above shall be deemed to be fulfilled.
| ||||||||
6.2.4
|
Petroleum & Natural Gas
| |||||||
6.2.4.1
|
Exploration activities of oil and natural gas fields, infrastructure related to marketing of petroleum products and natural gas, marketing of natural gas and petroleum products, petroleum product pipelines, natural gas/pipelines, LNG Regasification infrastructure, market study and formulation and Petroleum refining in the private sector, subject to the existing sectoral policy and regulatory framework in the oil marketing sector and the policy of the Government on private participation in exploration of oil and the discovered fields of national oil companies
|
100%
|
Automatic
| |||||
6.2.4.2
|
Petroleum refining by the Public Sector Undertakings (PSU), without any disinvestment or dilution of domestic equity in the existing PSUs.
|
49%
|
Government
| |||||
MANUFACTURING
| ||||||||
6.2.5
|
Manufacture of items reserved for production in Micro and Small Enterprises (MSEs)
| |||||||
6.2.5.1
|
FDI in MSEs (as defined under Micro, Small And Meduim Enterprises Development Act, 2006 (MSMED, Act 2006)) will be subject to the sectoral caps, entry routes and other relevant sectoral regulations. Any industrial undertaking which is not a Micro or Small Scale Enterprise, but manufactures items reserved for the MSE sector would require Government route where foreign investment is more than 24% in the capital. Such an undertaking would also require an Industrial License under the Industries (Development & Regulation) Act 1951, for such manufacture. The issue of Industrial License is subject to a few general conditions and the specific condition that the Industrial Undertaking shall undertake to export a minimum of 50% of the new or additional annual production of the MSE reserved items to be achieved within a maximum period of three years. The export obligation would be applicable from the date of commencement of commercial production and in accordance with the provisions of section 11 of the Industries (Development & Regulation) Act 1951.
| |||||||
6.2.6
|
DEFENCE
| |||||||
6.2.6.1
|
Defence Industry subject to Industrial license under the Industries (Development & Regulation) Act 1951
|
26%
|
Government
| |||||
6.2.6.2
|
Other conditions:
| |||||||
(i) Licence applications will be considered and licences given by the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, in consultation with Ministry of Defence.
(ii) The applicant should be an Indian company / partnership firm.
(iii) The management of the applicant company / partnership should be in Indian hands with majority representation on the Board as well as the Chief Executives of the company / partnership firm being resident Indians.
(iv) Full particulars of the Directors and the Chief Executives should be furnished along with the applications.
(v) The Government reserves the right to verify the antecedents of the foreign collaborators and domestic promoters including their financial standing and credentials in the world market. Preference would be given to original equipment manufacturers or design establishments, and companies having a good track record of past supplies to Armed Forces, Space and Atomic energy sections and having an established R & D base.
(vi) There would be no minimum capitalization for the FDI. A proper assessment, however, needs to be done by the management of the applicant company depending upon the product and the technology. The licensing authority would satisfy itself about the adequacy of the net worth of the non-resident investor taking into account the category of weapons and equipment that are proposed to be manufactured.
(vii) There would be a three-year lock-in period for transfer of equity from one non-resident investor to another non-resident investor (including NRIs & erstwhile OCBs with 60% or more NRI stake) and such transfer would be subject to prior approval of the Government.
(viii) The Ministry of Defence is not in a position to give purchase guarantee for products to be manufactured. However, the planned acquisition programme for such equipment and overall requirements would be made available to the extent possible.
(ix) The capacity norms for production will be provided in the licence based on the application as well as the recommendations of the Ministry of Defence, which will look into existing capacities of similar and allied products.
(x) Import of equipment for pre-production activity including development of prototype by the applicant company would be permitted.
(xi) Adequate safety and security procedures would need to be put in place by the licensee once the licence is granted and production commences. These would be subject to verification by authorized Government agencies.
(xii) The standards and testing procedures for equipment to be produced under licence from foreign collaborators or from indigenous R & D will have to be provided by the licensee to the Government nominated quality assurance agency under appropriate confidentiality clause. The nominated quality assurance agency would inspect the finished product and would conduct surveillance and audit of the Quality Assurance Procedures of the licensee. Self-certification would be permitted by the Ministry of Defence on case to case basis, which may involve either individual items, or group of items manufactured by the licensee. Such permission would be for a fixed period and subject to renewals.
(xiii) Purchase preference and price preference may be given to the Public Sector organizations as per guidelines of the Department of Public Enterprises.
(xiv) Arms and ammunition produced by the private manufacturers will be primarily sold to the Ministry of Defence. These items may also be sold to other Government entities under the control of the Ministry of Home Affairs and State Governments with the prior approval of the Ministry of Defence. No such item should be sold within the country to any other person or entity. The export of manufactured items would be subject to policy and guidelines as applicable to Ordnance Factories and Defence Public Sector Undertakings. Non-lethal items would be permitted for sale to persons / entities other than the Central of State Governments with the prior approval of the Ministry of Defence. Licensee would also need to institute a verifiable system of removal of all goods out of their factories. Violation of these provisions may lead to cancellation of the licence.
(xv) Government decision on applications to FIPB for FDI in defence industry sector will be normally communicated within a time frame of 10 weeks from the date of acknowledgement.
| ||||||||
SERVICES SECTOR
| ||||||||
INFORMATION SERVICES
| ||||||||
6.2.7
|
Broadcasting
| |||||||
6.2.7.1
|
Terrestrial Broadcasting FM (FM Radio) subject to such terms and conditions as specified from time to time by Ministry of Information and Broadcasting for grant of permission for setting up of FM Radio Stations
|
26% (FDI, NRI & PIO investments and portfolio investment)
|
Government
| |||||
6.2.7.2
|
Cable Network, subject to Cable Television Network Rules, 1994 and other conditions as specified from time to time by Ministry of Information and Broadcasting
|
49% (FDI, NRI & PIO investments and portfolio investment)
|
Government
| |||||
6.2.7.3
|
Direct–to-Home subject to such guidelines/terms and conditions as specified from time to time by Ministry of Information and Broadcasting
|
49% (FDI, NRI & PIO investments and portfolio investment) Within this limit, FDI component not to exceed 20%
|
Government
| |||||
6.2.7.4
|
Headend-In-The-Sky (HITS) Broadcasting Service refers to the multichannel downlinking and distribution of television programme in C-Band or Ku Band wherein all the pay channels are downlinked at a central facility (Hub/teleport) and again uplinked to a satellite after encryption of channel. At the cable headend these encrypted pay channels are downlinked using a single satellite antenna, transmodulated and sent to the subscribers by using a land based transmission system comprising of infrastructure of cable/optical fibres network.
| |||||||
6.2.7.4.1
|
FDI limit in (HITS) Broadcasting Service is subject to such guidelines/terms and conditions as specified from time to time by Ministry of Information and Broadcasting.
|
74% (total direct and indirect foreign investment including portfolio and FDI)
|
Automatic up to 49%
Government route beyond 49% and up to 74%
| |||||
6.2.7.5
|
Setting up hardware facilities such as up-linking, HUB etc.
| |||||||
(1) Setting up of Up-linking HUB/ Teleports
|
49% (FDI & FII)
|
Government
| ||||||
(2) Up-linking a Non-News & Current Affairs TV Channel
|
100%
|
Government
| ||||||
(3) Up-linking a News & Current Affairs TV Channel subject to the condition that the portfolio investment from FII/ NRI shall not be persons acting in concert with FDI investors, as defined in the SEBI(Substantial Acquisition of Shares and Takeovers) Regulations, 1997
|
26% (FDI & FII)
|
Government
| ||||||
6.2.7.5.1
|
Other conditions:
| |||||||
(i) All the activities at (1), (2) and (3) above will be further subject to the condition that the Company permitted to uplink the channel shall certify the continued compliance of this requirement through the Company Secretary at the end of each financial year.
(ii) FDI for Up-linking TV Channels will be subject to compliance with the Up-linking Policy notified by the Ministry of Information & Broadcasting from time to time.
| ||||||||
6.2.8
|
Print Media
| |||||||
6.2.8.1
|
Publishing of Newspaper and periodicals dealing with news and current affairs
|
26% (FDI and investment by NRIs/PIOs/FII)
|
Government
| |||||
6.2.8.2
|
Publication of Indian editions of foreign magazines dealing with news and current affairs
|
26% (FDI and investment by NRIs/PIOs/FII)
|
Government
| |||||
6.2.8.2.1
|
Other Conditions:
| |||||||
(i) ‘Magazine‘, for the purpose of these guidelines, will be defined as a periodical publication, brought out on non-daily basis, containing public news or comments on public news.
(ii) Foreign investment would also be subject to the Guidelines for Publication of Indian editions of foreign magazines dealing with news and current affairs issued by the Ministry of Information & Broadcasting on 4.12.2008.
| ||||||||
6.2.8.3
|
Publishing/printing of Scientific and Technical Magazines/specialty journals/ periodicals, subject to compliance with the legal framework as applicable and guidelines issued in this regard from time to time by Ministry of Information and Broadcasting.
|
100%
|
Government
| |||||
6.2.8.4
|
Publication of facsimile edition of foreign newspapers
|
100%
|
Government
| |||||
6.2.8.4.1
|
Other Conditions:
| |||||||
(i) FDI should be made by the owner of the original foreign newspapers whose facsimile edition is proposed to be brought out in India.
(ii) Publication of facsimile edition of foreign newspapers can be undertaken only by an entity incorporated or registered in India under the provisions of the Companies Act, 1956.
(iii) Publication of facsimile edition of foreign newspaper would also be subject to the Guidelines for publication of newspapers and periodicals dealing with news and current affairs and publication of facsimile edition of foreign newspapers issued by Ministry of Information & Broadcasting on 31.3.2006, as amended from time to time.
| ||||||||
6.2.9
|
Civil Aviation
| |||||||
6.2.9.1
|
The Civil Aviation sector includes Airports, Scheduled and Non-Scheduled domestic passenger airlines, Helicopter services / Seaplane services, Ground Handling Services, Maintenance and Repair organizations; Flying training institutes; and Technical training institutions.
For the purposes of the Civil Aviation sector:
(i) Airport means a landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in clause (2) of section 2 of the Aircraft Act, 1934;
(ii) "Aerodrome" means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all buildings, sheds, vessels, piers and other structures thereon or pertaining thereto;
(iii) "Air transport service" means a service for the transport by air of persons, mails or any other thing, animate or inanimate, for any kind of remuneration whatsoever, whether such service consists of a single flight or series of flights;
(iv) "Air Transport Undertaking" means an undertaking whose business includes the carriage by air of passengers or cargo for hire or reward;
(v) “Aircraft component" means any part, the soundness and correct functioning of which, when fitted to an aircraft, is essential to the continued airworthiness or safety of the aircraft and includes any item of equipment;
(vi) "Helicopter" means a heavier-than -air aircraft supported in flight by the reactions of the air on one or more power driven rotors on substantially vertical axis;
(vii) "Scheduled air transport service" means an air transport service undertaken between the same two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognizably systematic series, each flight being open to use by members of the public;
(viii) Non-Scheduled Air Transport service means any service which is not a scheduled air transport service and will include Cargo airlines;
(ix) Cargo airlines would mean such airlines which meet the conditions as given in the Civil Aviation Requirements issued by the Ministry of Civil Aviation;
(x) "Seaplane" means an aeroplane capable normally of taking off from and alighting solely on water;
(xi) Ground Handling means (i) ramp handling , (ii) traffic handling both of which shall include the activities as specified by the Ministry of Civil Aviation through the Aeronautical Information Circulars from time to time, and (iii) any other activity specified by the Central Government to be a part of either ramp handling or traffic handling.
| |||||||
6.2.9.2
|
Airports
| |||||||
(a) Greenfield projects
|
100%
|
Automatic
| ||||||
(b) Existing projects
|
100%
|
Automatic up to 74%
Government route beyond 74%
| ||||||
6.2.9.3
|
Air Transport Services
| |||||||
(a) Air Transport Services would include Domestic Scheduled Passenger Airlines; Non-Scheduled Air Transport Services, helicopter and seaplane services.
(b) No foreign airlines would be allowed to participate directly or indirectly in the equity of an Air Transport Undertaking engaged in operating Scheduled and Non-Scheduled Air Transport Services except Cargo airlines.
(c) Foreign airlines are allowed to participate in the equity of companies operating Cargo airlines, helicopter and seaplane services.
| ||||||||
(1) Scheduled Air Transport Service/ Domestic Scheduled Passenger Airline
|
49% FDI (100% for NRIs)
|
Automatic
| ||||||
(2) Non-Scheduled Air Transport Service
|
74% FDI (100% for NRIs)
|
Automatic up to 49%
Government route beyond 49% and up to 74%
| ||||||
(3) Helicopter services/seaplane services requiring DGCA approval
|
100%
|
Automatic
| ||||||
6.2.9.4
|
Other services under Civil Aviation sector
| |||||||
(1) Ground Handling Services subject to sectoral regulations and security clearance
|
74% FDI (100% for NRIs)
|
Automatic up to 49%
Government route beyond 49% and up to 74%
| ||||||
(2) Maintenance and Repair organizations; flying training institutes; and technical training institutions
|
100%
|
Automatic
| ||||||
6.2.10
|
Courier services for carrying packages, parcels and other items which do not come within the ambit of the Indian Post Office Act, 1898 and excluding the activity relating to the distribution of letters.
|
100%
|
Government
| |||||
6.2.11
|
Construction Development: Townships, Housing, Built-up infrastructure
| |||||||
6.2.11.1
|
Townships, housing, built-up infrastructure and construction-development projects (which would include, but not be restricted to, housing, commercial premises, hotels, resorts, hospitals, educational institutions, recreational facilities, city and regional level infrastructure)
|
100%
|
Automatic
| |||||
6.2.11.2
|
Investment will be subject to the following conditions:
(1) Minimum area to be developed under each project would be as under:
(i) In case of development of serviced housing plots, a minimum land area of 10 hectares
(ii) In case of construction-development projects, a minimum built-up area of 50,000 sq.mts
(iii)In case of a combination project, any one of the above two conditions would suffice
(2) 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.
(3) Original investment cannot be repatriated before a period of three years from completion of minimum capitalization. Original investment means the entire amount brought in as FDI. The lock-in period of three years will be applied from the date of receipt of each installment/tranche of FDI or from the date of completion of minimum capitalization, whichever is later. However, the investor may be permitted to exit earlier with prior approval of the Government through the FIPB.
(4) At least 50% of each such project must be developed within a period of five years from the date of obtaining all statutory clearances. The investor/investee company would not be permitted to sell undeveloped plots. 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.
(5) The project shall conform to the norms and standards, including land use requirements and provision of community amenities and common facilities, as laid down in the applicable building control regulations, bye-laws, rules, and other regulations of the State Government/Municipal/Local Body concerned.
(6) The investor/investee company 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.
(7) The State Government/ Municipal/ Local Body concerned, which approves the building / development plans, would monitor compliance of the above conditions by the developer.
Note:
(i) The conditions at (1) to (4) above would not apply to Hotels & Tourism, Hospitals, Special Economic Zones (SEZs), Education Sector, Old age Homes and investment by NRIs.
(ii) FDI is not allowed in Real Estate Business.
| |||||||
6.2.12
|
Industrial Parks – new and existing
|
100%
|
Automatic
| |||||
6.2.12.1
|
(i) Industrial Park is a project in which quality infrastructure in the form of plots of developed land or built up space or a combination with common facilities, is developed and made available to all the allottee units for the purposes of industrial activity.
(ii) Infrastructure refers to facilities required for functioning of units located in the Industrial Park and includes roads (including approach roads), water supply and sewerage, common effluent treatment facility, telecom network, generation and distribution of power, air conditioning.
(iii)Common Facilities refer to the facilities available for all the units located in the industrial park, and include facilities of power, roads (including approach roads), water supply and sewerage, common effluent treatment, common testing, telecom services, air conditioning, common facility buildings, industrial canteens, convention/conference halls, parking, travel desks, security service, first aid center, ambulance and other safety services, training facilities and such other facilities meant for common use of the units located in the Industrial Park.
(iv) Allocable area in the Industrial Park means-
(a) in the case of plots of developed land- the net site area available for allocation to the units, excluding the area for common facilities.
(b) in the case of built up space- the floor area and built up space utilized for providing common facilities.
(c) in the case of a combination of developed land and built-up space- the net site and floor area available for allocation to the units excluding the site area and built up space utilized for providing common facilities.
(v) Industrial Activity means manufacturing; electricity; gas and water supply; post and telecommunications; software publishing, consultancy and supply; data processing, database activities and distribution of electronic content; other computer related activities; basic and applied R&D on bio-technology, pharmaceutical sciences/life sciences, natural sciences and engineering; business and management consultancy activities; and architectural, engineering and other technical activities.
| |||||||
6.2.12.2
|
FDI in Industrial Parks would not be subject to the conditionalities applicable for construction development projects etc. spelt out in para 6.2.11 above, provided the Industrial Parks meet with the under-mentioned conditions:
(i) it would comprise of a minimum of 10 units and no single unit shall occupy more than 50% of the allocable area;
(ii) the minimum percentage of the area to be allocated for industrial activity shall not be less than 66% of the total allocable area.
| |||||||
6.2.13
|
Satellites – Establishment and operation
| |||||||
6.2.13.1
|
Satellites – Establishment and operation, subject to the sectoral guidelines of Department of Space/ISRO
|
74%
|
Government
| |||||
6.2.14
|
Private Security Agencies
|
49 %
|
Government
| |||||
6.2.15
|
Telecom Services
Investment caps and other conditions for specified services are given below. However, licensing and security requirements notified by the Department of Telecommunications will need to be complied with for all services.
| |||||||
6.2.15.1
|
(i) Telecom services
|
74%
|
Automatic up to 49%
Government route beyond 49% and up to 74%
| |||||
6.2.15.1.1
|
Other conditions:
| |||||||
(1) General Conditions:
(i) This is applicable in case of Basic, Cellular, Unified Access Services, National/ International Long Distance, V-Sat, Public Mobile Radio Trunked Services (PMRTS), Global Mobile Personal Communications Services (GMPCS) and other value added Services.
(ii) Both direct and indirect foreign investment in the licensee company shall be counted for the purpose of FDI ceiling. Foreign Investment shall include investment by Foreign Institutional Investors (FIIs), Non-resident Indians (NRIs), Foreign Currency Convertible Bonds (FCCBs), American Depository Receipts (ADRs), Global Depository Receipts (GDRs) and convertible preference shares held by foreign entity. In any case, the `Indian‘ shareholding will not be less than 26 percent.
(iii) FDI in the licensee company/Indian promoters/investment companies including their holding companies shall require approval of the Foreign Investment Promotion Board (FIPB) if it has a bearing on the overall ceiling of 74 percent. While approving the investment proposals, FIPB shall take note that investment is not coming from countries of concern and/or unfriendly entities.
(iv) The investment approval by FIPB shall envisage the conditionality that Company would adhere to licence Agreement.
(v) FDI shall be subject to laws of India and not the laws of the foreign country/countries.
(2) Security Conditions:
(i) The Chief Officer In-charge of technical network operations and the Chief Security Officer should be a resident Indian citizen.
(ii) Details of infrastructure/network diagram (technical details of the network) could be provided on a need basis only to telecom equipment suppliers/manufacturers and the affiliate/parents of the licensee company. Clearance from the licensor (Department of Telecommunications) would be required if such information is to be provided to anybody else.
(iii)For security reasons, domestic traffic of such entities as may be identified /specified by the licensor shall not be hauled/routed to any place outside India.
(iv) The licensee company shall take adequate and timely measures to ensure that the information transacted through a network by the subscribers is secure and protected.
(v) The officers/officials of the licensee companies dealing with the lawful interception of messages will be resident Indian citizens.
(vi) The majority Directors on the Board of the company shall be Indian citizens.
(vi) The positions of the Chairman, Managing Director, Chief Executive Officer (CEO) and/or Chief Financial Officer (CFO), if held by foreign nationals, would require to be security vetted by Ministry of Home Affairs (MHA). Security vetting shall be required periodically on yearly basis. In case something adverse is found during the security vetting, the direction of MHA shall be binding on the licensee.
(viii) The Company shall not transfer the following to any person/place outside India:-
(a) Any accounting information relating to subscriber (except for international roaming/billing) (Note: it does not restrict a statutorily required disclosure of financial nature) ; and
(b) User information (except pertaining to foreign subscribers using Indian Operator‘s network while roaming).
(ix) The Company must provide traceable identity of their subscribers. However, in case of providing service to roaming subscriber of foreign Companies, the Indian Company shall endeavour to obtain traceable identity of roaming subscribers from the foreign company as a part of its roaming agreement.
(x) On request of the licensor or any other agency authorised by the licensor, the telecom service provider should be able to provide the geographical location of any subscriber (BTS location) at a given point of time.
(xi) The Remote Access (RA) to Network would be provided only to approved location(s) abroad through approved location(s) in India. The approval for location(s) would be given by the Licensor (DOT) in consultation with the Ministry of Home Affairs.
(xii) Under no circumstances, should any RA to the suppliers/manufacturers and affiliate(s) be enabled to access Lawful Interception System(LIS), Lawful Interception Monitoring(LIM), Call contents of the traffic and any such sensitive sector/data, which the licensor may notify from time to time.
(xiii) The licensee company is not allowed to use remote access facility for monitoring of content.
(xiv) Suitable technical device should be made available at Indian end to the designated security agency /licensor in which a mirror image of the remote access information is available on line for monitoring purposes.
(xv) Complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of six months and provided on request to the licensor or any other agency authorised by the licensor.
(xvi) The telecom service providers should ensure that necessary provision (hardware/software) is available in their equipment for doing the Lawful interception and monitoring from a centralized location.
(xvii) The telecom service providers should familiarize/train Vigilance Technical Monitoring (VTM)/security agency officers/officials in respect of relevant operations/features of their systems.
(xviii) It shall be open to the licensor to restrict the Licensee Company from operating in any sensitive area from the National Security angle.
(xix) In order to maintain the privacy of voice and data, monitoring shall only be upon authorisation by the Union Home Secretary or Home Secretaries of the States/Union Territories.
(xx) For monitoring traffic, the licensee company shall provide access of their network and other facilities as well as to books of accounts to the security agencies.
(xxi) The aforesaid Security Conditions shall be applicable to all the licensee companies operating telecom services covered under this circular irrespective of the level of FDI.
(xxii) Other Service Providers (OSPs), providing services like Call Centres, Business Process Outsourcing (BPO), tele-marketing, tele-education, etc, and are registered with DoT as OSP. Such OSPs operate the service using the telecom infrastructure provided by licensed telecom service providers and 100% FDI is permitted for OSPs. As the security conditions are applicable to all licensed telecom service providers, the security conditions mentioned above shall not be separately enforced on OSPs.
(3) The above General Conditions and Security Conditions shall also be applicable to the companies operating telecom service(s) with the FDI cap of 49%.
(4) All the telecom service providers shall submit a compliance report on the aforesaid conditions to the licensor on 1st day of July and January on six monthly basis.
| ||||||||
6.2.15.2
|
(a) ISP with gateways
(b) ISP‘s not providing gateways i.e. without gate-ways (both for satellite and marine cables)
Note:
The new guidelines of August 24, 2007 Department of Telecommunications provide for new ISP licenses with FDI up to 74%.
(c) Radio paging
(d) End-to-End bandwidth
|
74%
|
Automatic up to 49% Government route beyond 49% and up to 74%
| |||||
6.2.15.3
|
(a) Infrastructure provider providing dark fibre, right of way, duct space, tower (IP Category I)
(b)Electronic Mail
(c) Voice Mail
Note:
Investment in all the above activities is subject to the conditions that such companies will divest 26% of their equity in favour of Indian public in 5 years, if these companies are listed in other parts of the world.
|
100%
|
Automatic up to 49%
Government route beyond 49%
| |||||
6.2.16
|
TRADING
| |||||||
6.2.16.1
|
(i) Cash & Carry Wholesale Trading/ Wholesale Trading (including sourcing from MSEs)
|
100%
|
Automatic
| |||||
6.2.16.1.1
|
Definition: Cash & Carry Wholesale trading/Wholesale trading, would mean sale of goods/merchandise to retailers, industrial, commercial, institutional or other professional business users or to other wholesalers and related subordinated service providers. Wholesale trading would, accordingly, be sales for the purpose of trade, business and profession, as opposed to sales for the purpose of personal consumption. The yardstick to determine whether the sale is wholesale or not would be the type of customers to whom the sale is made and not the size and volume of sales. Wholesale trading would include resale, processing and thereafter sale, bulk imports with ex-port/ex-bonded warehouse business sales and B2B e-Commerce.
| |||||||
6.2.16.1.2
|
Guidelines for Cash & Carry Wholesale Trading/Wholesale Trading (WT):
(a) For undertaking WT, requisite licenses/registration/ permits, as specified under the relevant Acts/Regulations/Rules/Orders of the State Government/Government Body/Government Authority/Local Self-Government Body under that State Government should be obtained.
(b) Except in case of sales to Government, sales made by the wholesaler would be considered as cash & carry wholesale trading/wholesale trading‘ with valid business customers, only when WT are made to the following entities:
(I) Entities holding sales tax/ VAT registration/service tax/excise duty registration; or
(II) Entities holding trade licenses i.e. a license/registration certificate/membership certificate/registration under Shops and Establishment Act, issued by a Government Authority/ Government Body/ Local Self-Government Authority, reflecting that the entity/person holding the license/ registration certificate/ membership certificate, as the case may be, is itself/ himself/herself engaged in a business involving commercial activity; or
(III) Entities holding permits/license etc. for undertaking retail trade (like tehbazari and similar license for hawkers) from Government Authorities/Local Self Government Bodies; or
(IV) Institutions having certificate of incorporation or registration as a society or registration as public trust for their self consumption.
Note: An Entity, to whom WT is made, may fulfill any one of the 4 conditions.
( c) Full records indicating all the details of such sales like name of entity, kind of entity, registration/license/permit etc. number, amount of sale etc. should be maintained on a day to day basis.
(d) WT of goods would be permitted among companies of the same group. However, such WT to group companies taken together should not exceed 25% of the total turnover of the wholesale venture
(e) WT can be undertaken as per normal business practice, including extending credit facilities subject to applicable regulations.
(f) A Wholesale/Cash & carry trader cannot open retail shops to sell to the consumer directly.
| |||||||
6.2.16.2
|
E-commerce activities
|
100%
|
Automatic
| |||||
6.2.16.2.1
|
E-commerce activities refer to the activity of buying and selling by a company through the e-commerce platform. Such companies would engage only in Business to Business (B2B) e-commerce and not in retail trading, inter-alia implying that existing restrictions on FDI in domestic trading would be applicable to e-commerce as well.
| |||||||
6.2.16.3
|
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 facility commences simultaneously with test marketing.
|
100%
|
Government
| |||||
6.2.16.4
|
Single Brand product retail trading
|
100%
|
Government
| |||||
(1) Foreign Investment in Single Brand product retail trading is aimed at attracting investments in production and marketing, improving the availability of such goods for the consumer, encouraging increased sourcing of goods from India, and enhancing competitiveness of Indian enterprises through access to global designs, technologies and management practices.
(2) FDI in Single Brand product retail trading would be subject to the following conditions:
(a) Products to be sold should be of a Single Brand‘ only.
(b) Products should be sold under the same brand internationally i.e. products should be sold under the same brand in one or more countries other than India.
(c) Single Brand‘ product-retail trading would cover only products which are branded during manufacturing.
(d) The foreign investor should be the owner of the brand.
(e) In respect of proposals involving FDI beyond 51%, mandatory sourcing of at least 30% of the value of products sold would have to be done from Indian small industries/ village and cottage industries, artisans and craftsmen‘. 'Small industries' would be defined as industries which have a total investment in plant & machinery not exceeding US $ 1.00 million. This valuation refers to the value at the time of installation, without providing for depreciation. Further, if at any point in time, this valuation is exceeded, the industry shall not qualify as a 'small industry' for this purpose. The compliance of this condition will be ensured through self-certification by the company, to be subsequently checked, by statutory auditors, from the duly certified accounts, which the company will be required to maintain.
(3) Application seeking permission of the Government for FDI in retail trade of Single Brand‘ products would be made to the Secretariat for Industrial Assistance (SIA) in the Department of Industrial Policy & Promotion. The application would specifically indicate the product/ product categories which are proposed to be sold under a Single Brand‘. Any addition to the product/ product categories to be sold under Single Brand‘ would require a fresh approval of the Government.
(4) Applications would be processed in the Department of Industrial Policy & Promotion, to determine whether the products proposed to be sold satisfy the notified guidelines, before being considered by the FIPB for Government approval.
| ||||||||
FINANCIAL SERVICES Foreign investment in other financial services , other than those indicated below, would require prior approval of the Government:
| ||||||||
6.2.17
|
Asset Reconstruction Companies
| |||||||
6.2.17.1
|
Asset Reconstruction Company‘ (ARC) means a company registered with the Reserve Bank of India under Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).
|
49% of paid-up capital of ARC
|
Government
| |||||
6.2.17.2
|
Other conditions:
| |||||||
(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 up to 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.
| ||||||||
6.2.18
|
Banking –Private sector
| |||||||
6.2.18.1
|
Banking –Private sector
|
74% including investment by FIIs
|
Automatic up to 49%
Government route beyond 49% and up to 74%
| |||||
6.2.18.2
|
Other conditions:
| |||||||
(1) This 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 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 to a wholly-owned subsidiary of a foreign bank.
(3) The stipulations as above will be applicable to all investments in existing private sector banks also.
(4) The permissible limits under portfolio investment schemes through stock exchanges for FIIs and NRIs will be as follows:
(i) In the case of FIIs, as hitherto, 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.
(a) Thus, the FII investment limit will continue to be within 49 per cent of the total paid-up capital.
(b) In the case of NRIs, as hitherto, 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.
(c) Applications for foreign direct investment 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.
(d) Transfer of shares under FDI from residents to non-residents will continue to require approval of RBI and Government as per para 3.6.2 above as applicable.
(e) The policies and procedures prescribed from time to time by RBI and other institutions such as SEBI, D/o Company Affairs and IRDA on these matters will continue to apply.
(f) 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.
(ii) 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 consistent with para (i) (b) above.
(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 will 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.
(iii) 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. Any change in the ceiling can be brought about only after final policy decisions and appropriate Parliamentary approvals.
| ||||||||
6.2.19
|
Banking- Public Sector
| |||||||
6.2.19.1
|
Banking- Public Sector 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.
|
20% (FDI and Portfolio Investment)
|
Government
| |||||
6.2.20
|
Commodity Exchanges
| |||||||
6.2.20.1
|
1 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.
2 For the purposes of this chapter,
(i) Commodity Exchange is a recognized association under the provisions of the Forward Contracts (Regulation) Act, 1952, as amended from time to time, to provide exchange platform for trading in forward contracts in commodities.
(ii) recognized association means an association to which recognition for the time being has been granted by the Central Government under Section 6 of the Forward Contracts (Regulation) Act, 1952
(iii) Association means any body of individuals, whether incorporated or not, constituted for the purposes of regulating and controlling the business of the sale or purchase of any goods and commodity derivative.
(iv) Forward contract means a contract for the delivery of goods and which is not a ready delivery contract.
(v) Commodity derivative means-
• a contract for delivery of goods, which is not a ready delivery contract; or
• a contract for differences which derives its value from prices or indices of prices of such underlying goods or activities, services, rights, interests and events, as may be notified in consultation with the Forward Markets Commission by the Central Government, but does not include securities.
| |||||||
6.2.20.2
|
Policy for FDI in Commodity Exchange
|
49% (FDI & FII) [Investment by Registered FII under Portfolio Investment Scheme (PIS) will be limited to 23% and Investment under FDI Scheme limited to 26% ]
|
Government (For FDI)
| |||||
6.2.20.3
|
Other conditions:
| |||||||
(i) FII purchases shall be restricted to secondary market only and
(ii) No non-resident investor/ entity, including persons acting in concert, will hold more than 5% of the equity in these companies.
| ||||||||
6.2.21
|
Credit Information Companies (CIC)
| |||||||
6.2.21.1
|
Credit Information Companies
|
49% (FDI & FII)
|
Government
| |||||
6.2.21.2
|
Other Conditions:
| |||||||
(1) Foreign investment in Credit Information Companies is subject to the Credit Information Companies (Regulation) Act, 2005.
(2) Foreign investment is permitted under the Government route, subject to regulatory clearance from RBI.
(3) 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.
(4) 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.
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6.2.22
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Infrastructure Company in the Securities Market
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6.2.22.1
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Infrastructure companies in Securities Markets, namely, stock exchanges, depositories and clearing corporations, in compliance with SEBI Regulations
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49% (FDI & FII) [FDI limit of 26 per cent and an FII limit of 23 per cent of the paid-up capital ]
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Government (For FDI)
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6.2.22.2
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Other Conditions:
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6.2.22.2.1
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FII can invest only through purchases in the secondary market
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6.2.23
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Insurance
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6.2.23.1
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Insurance
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26%
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Automatic
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6.2.23.2
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Other Conditions:
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(1) FDI in the Insurance sector, as prescribed in the Insurance Act, 1938, 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.
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6.2.24
|
Non-Banking Finance Companies (NBFC)
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6.2.24.1
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Foreign investment in NBFC is allowed under the automatic route in only the following activities:
(i) Merchant Banking
(ii) Under Writing
(iii) Portfolio Management Services
(iv) Investment Advisory Services
(v) Financial Consultancy
(vi) Stock Broking
(vii) Asset Management
(viii) Venture Capital
(ix) Custodian Services
(x) Factoring
(xi) Credit Rating Agencies
(xii) Leasing & Finance
(xiii) Housing Finance
(xiv) Forex Broking
(xv) Credit Card Business
(xvi) Money Changing Business
(xvii) Micro Credit
(xviii) Rural Credit
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100%
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Automatic
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6.2.24.2
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Other Conditions:
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(1) Investment would be subject to the following minimum capitalisation norms:
(i) US $0.5 million for foreign capital up to 51% to be brought upfront
(ii) US $ 5 million for foreign capital more than 51% and up to 75% to be brought upfront
(iii)US $ 50 million for foreign capital more than 75% out of which US$ 7.5 million to be brought upfront and the balance in 24 months.
(iv) 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. The minimum capitalization condition as mandated by para 3.10.4.1, therefore, shall not apply to downstream subsidiaries.
(vi) 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 in (i), (ii) and (iii) above and (vi) below.
(vii) Non- Fund based activities : US $0.5 million to be brought upfront for all permitted non-fund based NBFCs irrespective of the level of foreign investment subject to the following condition: It 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. Note: The following activities would be classified as Non-Fund Based activities: (a) Investment Advisory Services (b) Financial Consultancy (c) Forex Broking (d) Money Changing Business (e) Credit Rating Agencies
(viii) This will be subject to compliance with the guidelines of RBI.
Note:
(i) Credit Card business includes issuance, sales, marketing & design of various payment products such as credit cards, charge cards, debit cards, stored value cards, smart card, value added cards etc.
(ii) Leasing & Finance covers only financial leases and not operating leases.
(2) The NBFC will have to comply with the guidelines of the relevant regulator/ s, as applicable
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6.2.25
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Pharmaceuticals
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6.2.25.1
|
Greenfield
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100%
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Automatic
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6.2.25.2
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Existing Companies
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100%
|
Government
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Source:Department of Industrial Policy and Promotion (DIPP),Govt. of India, ( Circular Dated 10.04.2012)
[1] [1).Floriculture, Horticulture, Apiculture and Cultivation of Vegetables & Mushrooms under controlled conditions; b) Development and production of Seeds and planting material; c) Animal Husbandry (including breeding of dogs), Pisciculture, Aquaculture, under controlled conditions; and d) services related to agro and allied sectors 2) Tea Plantations]
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