1 Fema 1999
1 Fema 1999
Sec 2: Definitions
PM: Answer the following:
(i) How will you determine whether a particular business unit like a factory or office is a ‘person resident in
India’ under Foreign Exchange Management Act, 1999?
(ii) ‘Printex Computer’ is a Singapore based company having several business units all over the world. It has
a unit for manufacturing computer printers with its Headquarters in Pune. It has a Branch in Dubai
which is controlled by the Headquarters in Pune. What would be the residential status under FEMA,
1999 of printer units in Pune and that of Dubai branch?
Ans:
Provision: [Relevant section 2(u) & 2(v) & 2(w) of the FEMA, 1999 as follows]
Person resident in India Means (for artificial person):
1. Any person or body corporate registered or incorporated in India,
2. An office, branch or agency in India owned or controlled by a person resident outside India,
3. An office, branch or agency outside India owned or controlled by a person resident in India;
Explanation & Answer:
In the given case:
1. The status of ‘Printex Computer’ is PROI as it is Singapore based company.
2. The status of its Pune headquarter is PRI as it is branch or agency in India owned or controlled by PROI.
3. The status of its Dubai branch is also PRI as it is branch or agency outside India owned or controlled by PRI.
Suggestion:
Any person other than PRI is PROI. [Sec 2(w)]
PM,N02: Mr. Ram had resided in India during the Financial Year 1999-2000 for less than 183 days. He again
came to India on 1st May, 2000 for higher studies and business and stayed upto 15th July, 2001. State under
the Foreign Exchange Management Act, 1999.
If Mr. Ram can be considered ‘person Resident in India’ during the Financial year 2000-2001 and
Is citizenship relevant for determining such a status?
Ans:
Provision: [Relevant section 2(u) & 2(v) & 2(w) of the FEMA, 1999 as follows]
Person resident in India Means:
Person residing in India for more than one hundred and eighty-two days during the course of the preceding
financial year but does not include-
A. A person who has gone out of India or who stays outside India, in either case-
i. For or on taking up employment outside India, or
ii. For carrying on outside India a business or vocation outside India, or
iii. For any other purpose, in such circumstances as would indicate his intention to stay outside India
for an uncertain period;
B. A person who has come to or stays in India, in either case, otherwise than-
i. For or on taking up employment in India, or
ii. For carrying on in India a business or vocation in India, or
iii. For any other purpose, in such circumstances as would indicate his intention to stay in India for an
uncertain period;
Explanation:
In the given case Mr. Ram had resided in India during the Financial Year 1999-2000 for less than 183 days. Thus
irrespective of any next question his residential status will be PROI in FY 2000-2001 (assuming it is 182 or less
days). He again came to India on 1st May, 2000 for higher studies and business and stayed upto 15th July,
2001. This will not change his residential status as primary condition of more than 182 days residence in previ-
ous year i.e. 1999-2000 is not complied with.
Answer:
i. Mr. Ram cannot be considered ‘person Resident in India’ during the financial year 2000-2001.
ii. Citizenship is not relevant for deciding the residential status of FEMA.
Suggestion:
Any person other than PRI is PROI. [Sec 2(w)]
PM,M03: Examine whether the following branches can be considered as a 'Person resident in India' under
Foreign Exchange Management Act, 1999:
ABC Limited, a company incorporated in India established a branch at London on 1st January, 2003.
M/s XYZ, a foreign company, established a branch at New Delhi on 1st January, 2003. The branch at New
Delhi controls a branch at Colombo.
Ans:
Provision: [Relevant section 2(u) & 2(v) & 2(w) of the FEMA, 1999 as follows]
Person resident in India Means (for artificial person):
1. Any person or body corporate registered or incorporated in India,
2. An office, branch or agency in India owned or controlled by a person resident outside India,
3. An office, branch or agency outside India owned or controlled by a person resident in India;
Explanation & Answer:
In the given case:
(i) Status of ABC Ltd is PRI as it is incorporated in India. Status of its London branch is PRI as it is branch or
office or agency outside India owned or controlled by PRI.
(ii) Status of M/S XYZ is PROI as it is foreign incorporated company. But the status of its Delhi branch is PRI
as it is branch in India owned or controlled by PROI. And status of its Colombo branch is also PRI as it is
branch outside India owned or controlled by PRI.
Suggestion:
Any person other than PRI is PROI. [Sec 2(w)]
N07: Examine with reference to the provisions of the Foreign Exchange Management Act, 1999, the residen-
tial status of the branches mentioned below:
(a) NNM Ltd. an Indian Company having its registered office at Mumbai, India established a branch at New
York USA on 1st April, 2005.
(b) DDI Ltd. a company incorporated and registered in London established a branch at Kanpur in India on 1st
April 2005.
(c) DDI Ltd. has a branch office at Singapore which is controlled by its Kanpur branch.
Ans:
Provision: [Relevant section 2(u) & 2(v) & 2(w) of the FEMA, 1999 as follows]
Person resident in India Means (for artificial person):
1. Any person or body corporate registered or incorporated in India,
2. An office, branch or agency in India owned or controlled by a person resident outside India,
3. An office, branch or agency outside India owned or controlled by a person resident in India;
Explanation & Answer:
In the given case:
(a) Status of NNM Ltd is PRI as it is incorporated in India. Status of its New York branch is PRI as it is branch or
office or agency outside India owned or controlled by PRI.
(b) Status of DDI is PROI as it is foreign incorporated company. But the status of its Kanpur branch is PRI as it
is branch in India owned or controlled by PROI.
(c) Status of DDI's Singapore branch is also PRI as it is branch outside India owned or controlled by PRI i.e.
Kanpur branch.
N09: Mr. Ruchi resided for a period of 170 days in India during the financial year 2008-09 and thereafter
went abroad. He came back to India on 1st April, 2009 as an employee of a business organization. What
would be his residential status during financial year 2009-10 under the Foreign Exchange Management Act,
1999?
Ans:
Provision: [Relevant section 2(u) & 2(v) & 2(w) of the FEMA, 1999 as follows]
Person resident in India Means:
Person residing in India for more than one hundred and eighty-two days during the course of the preceding
financial year but does not include-
A. A person who has gone out of India or who stays outside India, in either case-
N12: Mrs. Chandra, a resident outside India, is likely to inherit from her father some immovable property in
India. Are there any restrictions under the provisions of the Foreign Exchange Management Act, 1999 in ac-
quiring or holding such property? State whether Mrs. Chandra can sell the property and repatriate outside
India the sale proceeds.
Ans:
Provision: [Relevant section 6(5) & 8 of the FEMA, 1999 as follows]
A person resident outside India may hold, own, transfer or invest in Indian currency, security or any immovable
property situated in India if such currency, security or property was acquired, held or owned by such person
when he was resident in India or inherited from a person who was resident in India.
Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any
person resident in India, such person shall take all reasonable steps to realise and repatriate to India such for-
eign exchange within such period and in such manner as may be specified by the Reserve Bank.
A person shall sell the realised foreign exchange to an authorised person within 7 days if he has received such
exchange as due or accrued remuneration for services rendered, whether in or outside India, or in settlement
of any lawful obligation or an income on assets held outside India, or as inheritance, settlement or gift and in
all other cases within 90 days of its receipt.
Explanation & Answer: Accordingly in the given case, Mrs. Chandra, a resident outside India, may acquire or
hold any immovable property of his father in India by way of inheritance in both the conditions, firstly, where
her father, a resident outside India, had acquired the property in accordance with the provisions of the foreign
exchange law in force at the time of acquisition by him or as per the provisions of these Regulations or second-
ly, where her father, a resident in India. Thus, accordingly Mrs. Chandra can sell the property and repatriate
outside India the sale proceeds only with the prior permission of the RBI.
Sec 2(l) & 7: Export of goods and services
N09: Referring to the provisions of the Foreign Exchange Management Act, 1999, examine whether V, an
exporter is bound to make declaration of the following goods exported from India to United Kingdom :
(a) Exports software valuing Rs.50,000
(b) V gifts certain items of jewelry valued at Rs.20,000 to his friend in Australia
(c) V exports certain goods valuing US $ 5,000 to Myanmar under Barter Trade Agreement
Ans:
Provision: [Relevant section 2(l) & 7 of the FEMA, 1999 as follows]
Sec 2(l): “Export”, with its grammatical variations and cognate expressions means;
(i) The taking out of India to a place outside India any goods.
(ii) provision of services from India to any person outside India;
In case of exports taking place through Customs manual ports, every exporter of goods or software in physical
form or through any other form, either directly or indirectly, to any place outside India, other than Nepal and
Bhutan, shall furnish to the specified authority, a declaration in one of the forms set out in the Schedule and
supported by such evidence as may be specified, containing true and correct material particulars including the
amount representing –
(i) the full export value of the goods or software; or
(ii) if the full export value is not ascertainable at the time of export, the value which the exporter, having re-
gard to the prevailing market conditions expects to receive on the sale of the goods or the software in
overseas market, and affirms in the said declaration that the full export value of goods (whether ascer-
tainable at the time of export or not) or the software has been or will within the specified period be,
paid in the specified manner.
Declarations shall be executed in sets of such number as specified.
For the removal of doubt, it is clarified that, in respect of export of services to which none of the Forms
specified in these Regulations apply, the exporter may export such services without furnishing any decla-
ration, but shall be liable to realise the amount of foreign exchange which becomes due or accrues on ac-
count of such export, and to repatriate the same to India in accordance with the provisions of the Act, and
these Regulations, as also other rules and regulations made under the Act.
Realization of export proceeds in respect of export of goods / software from third party should be duly
N13: Examine with reference to the Provisions of the Foreign Exchange Management Act, 1999 and the rules
made thereunder whether foreign exchange can be drawn for the following purposes:
(i) Mr. Gopal, a cine artist in India proposes to organize a cultural programme at Dubai and requires to
draw foreign exchange US $ 1,00,000 for this purpose.
(ii) Mr. Shah proposes to visit United States on a business tour and for this purpose he wants to draw for-
eign exchange US$ 40,000 for meeting expenses.
Ans:
Drawal of Foreign Exchange
(i) Cultural programme: Foreign exchange for meeting expenses of cultural tour can be withdrawn by a per-
son after obtaining permission from the Government of India, Ministry of Human Resources Development
(Department of Education and Culture) as prescribed in second schedule to the Foreign Exchange Man-
agement (Current Account Transactions) Rules, 2000. Hence, Mr. Gopal can withdraw US $ 1,00,000 after
obtaining permission from the Government of India.
(ii) Business tour: The type of payment envisaged is covered under Third Schedule to Foreign Exchange Man-
agement (Current Account Transactions) Rules, 2000. RBI allows withdrawal of $ 2,50,000 under Liberal-
ized remittance scheme for business tour.
M14: Mr. V, a person of Indian origin and resident of USA desires to acquire two immovable properties in
India comprising
(i) a residential flat in Mumbai and
(ii) a farm house on the outskirts of Mumbai.
Explain the steps he has to take in this matter having regard to the provisions of FEMA, 1999.
Ans: Permissible Transactions: Acquisition and transfer of immovable property in India by a person resident
outside India is a permissible transaction under the Foreign Exchange Management (Permissible Capital Ac-
count Transactions) Regulations, 2000.
Acquisition and transfer of property in India by a person of Indian origin
A person of Indian origin resident outside India may acquire immovable property in India other than an agricul-
tural property, plantation, or a farm house. However, in case of acquisition of immovable property, payment of
purchase price, if any, shall be made out of:
i. funds received in India through normal banking channels by way of inward remittance from any place
outside India, or
ii. funds held in any non-resident account maintained in accordance with the provisions of the Foreign Ex-
change Management Act, 1999, and the regulations made by the Reserve Bank of India.
Further, no payment of purchase price for acquisition of immovable property shall be made either by travel-
ler’s cheque or by currency notes of any foreign country or any mode other than those specifically permitted
by this clause.
Thus, by following the above steps as mentioned in the provisions of the Foreign Exchange Management Act,
1999, and the Regulations made thereunder, Mr. V, a person of Indian origin and resident of USA (i.e. resident
outside India):
iii. can acquire a residential flat in Mumbai and
iv. cannot acquire a farmhouse on the outskirts of Mumbai.
M15: (i) ABC Limited, a foreign company failed to deliver some desired documents to the Registrar of Com-
panies as required under Section 380 of the Companies Act, 2013.
State the provisions of penalty prescribed under the said Act, which can be levied on ABC Limited for its fail-
ure.
(ii) Mr. Rohan, an Indian Resident individual desires to obtain Foreign Exchange for the following purposes:
(A) US$ 1,20,000 for studies abroad on the basis of estimates given by the foreign university.
(B) Gift Remittance amounting US$ 10,000.
Advise him whether he can get Foreign Exchange and if so, under what condition(s)?
Ans:
Provision: [Relevant section 380 of the Companies Act, 2013]