A non-resident individual or entity, holding an investment in an Indian entity by way of equity instruments on repatriation basis may choose to divest its holding by transferring its shares to another person. A transfer of equity instrument can be effectuated by way of sale or by way of gift. In this note, we shall specifically discuss about the important aspects w.r.t transfer of Equity shares by way of sale, from a non-resident to another non-resident, individual or entity, under the provisions of Companies Act, 2013, and the relevant FEMA Regulations.
The governing law for aforesaid transfer of shares of an Indian Company is enshrined under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 (‘hereinafter to be termed as NDI Rules 2019’) read with the Foreign Exchange Management (Mode of Payment and Reporting of Non-Debt Instruments) Regulations, 2019 (‘hereinafter to be termed as NDI Reporting Regulation). Notably, in this respect, the provisions of the Companies Act 2013 and the relevant rules made thereunder should also to be taken care of.
A transaction pertaining to transfer of shares of an Indian Company by a person resident outside India shall fall under the following two categories of investment routes:
In a nutshell, following are the prominent checkpoints to analyse the compliances governing the transfer of shares of an Indian Entity between Non Residents:
Within the purview of the framework of the Companies Act 2013 (‘the Act’), transaction pertaining to transfer of shares of an Indian Company, shall be subjected to section 56 of the Act read with the Companies (Share Capital and Debenture) Rules, 2014.
To summarise the requirements involved in a share transfer under the ambit of the Act, we have reproduced herein, the following flow of events and the documentation required:
The transfer of shares held in dematerialised form is quite similar to transfer of shares in physical form. The major difference is that at the time of settlement, instead of delivery/receipt of shares in the physical form, the same is affected through account transfers.
The same can be accomplished by getting in touch with your stock broker.
*The procurement or execution of a valuation report or share purchase agreement is not required by law, and the parties are free to decide whether to execute such documents based on the specifics of particular transaction.
Within the ambit of provisions under the Companies Act 2013, no separate reporting by filing any e-form is required to be made to the Registrar of Companies (ROC) as the same is reported while filing Annual Return of the Company (e-form MGT-7) providing details of the shares transferred during the financial year.
Notably, where shares are transferred from a Non Resident to another Non Resident, the profit arising out of sale or transfer of shares are neither accrued nor earned in India, therefore the same is left out of the ambit of provisions of the Income Tax Act, 1961 and hence shall be regulated as the legal framework prevalent in the laws of the home country of the parties involved.
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Company X is an Indian company working in making wind power plants in different parts of India. Company X is entering into a transaction that involves the issuance of shares by Company X to Company Y a subsidiary of Company Z(Based in Australia). Company Z (on behalf of a subsidiary)will remit the ‘share application money’ for the allotment of shares by Company X to Company Y.
Query: Under FEMA and rules made thereunder, Company Z can remit ‘share application money’ on behalf of its subsidiary i.e., Company Y? If so, will Company X be required to obtain any approval from the Reserve Bank of India or any other authority with respect to the aforesaid transaction?
Thank you for reaching out to us with your query regarding the transaction involving Company X, Company Y, and Company Z. We appreciate your interest in our expertise in matters related to foreign exchange regulations and transactions in India.
Based on the information provided, it is crucial to note that your case involves complex considerations under the Foreign Exchange Management Act (FEMA) and its rules. The remittance of “share application money” by Company Z on behalf of its subsidiary, Company Y, requires a detailed analysis of the specific circumstances and the entities involved.
To provide you with accurate and comprehensive advice, we recommend a detailed review of the transaction structure, the residency status of the companies involved, and the applicable FEMA provisions. This analysis will enable us to determine the permissibility of the remittance, any necessary approvals from the Reserve Bank of India (RBI), and any other relevant authorities.
Given the intricacies of foreign exchange regulations in India, it is essential to seek professional assistance to ensure compliance with the applicable laws. Our team of experts specializes in this field and can offer you tailored advice based on the latest regulations and their practical implications.
You may prefer to connect with us for professional assistance in this matter.
So if there is an issuance of shares by an Indian company to a foreign company (based in Singapore) which is a subsidiary of another foreign company(Holding Company) so in that case if share application money remit by the holding company on behalf of a subsidiary company, so can one do this under FEMA and do they require any approval from the RBI or any other authority under Company ACT or FEMA?
Dear Reader,
Please be informed that FEMA does not prohibit the remittance of funds by a person other than the investor against equity shares of an Indian Company.
Hence, in the present case, share application money can be remitted by the Foreign Holding Company on behalf of its subsidiary Company and no approval from the RBI shall be required.
However, while reporting the FDI in form FCGPR, KYC of the remitter shall be filed along with the investor’s.
Stamp duty on transfer between non resident to non resident is not needed as the transaction takes place out of India and between foreigners so this I don’t think attract.
Dear Reader,
As per your query, in case of transfer of shares between non-resident to non-resident, the stamp shall be payable in India. The same is governed by Indian Stamp Act, 1899, which says that , stamp duty is payable on documents executed in India or relating to any property situated in India. Since in the given case, we understand that the shares under subject matter are of an Indian Company, so stamp duty shall be payable in India.
Please note our view is based on the limited information shared by you and it is advisable to consult a legal expert to determine the applicability of stamp duty on a particular document.
Please share under which section of Income Tax the said transfer is exempted.
Dear Reader,
This article deals with the transfer of shares between two non residents. We assume that you are asking for the taxation aspects of this transaction.
Your kind attention is drawn to the concluding para of this article wherein it is mentioned that where shares are transferred from a Non Resident to another Non Resident, the profit arising out of sale or transfer of shares are neither accrued nor earned in India. Therefore the same is left out of the ambit of provisions of the Income Tax Act, 1961.
Hope we have addressed your concerns. If you have any specific query that still needs a resolution, you are requested to contact us for professional assistance.