Foreign Exchange Management Act (FEMA)

Categories and status of different persons

Broadly speaking FEMA, covers, three different types of categories, and deals differently with them.

These categories are:

1. Person
2. Person Resident In India
3. Person Resident Outside India

A. Person
For the purpose of provisions, a person shall include any of the following:

1. An individual
2. A Hindu Undivided family
3. A company
4. A Firm
5. An association of persons or a body of individuals, whether incorporated or not,
6. Every artificial judicial person, not falling within any of the preceding sub clauses, and
7. Any agency, office or branch owned or controlled by such person.

B. "Person resident in India"

"A person resident in India ", shall include any of the following

1. A person who has been residing in India for more than 182 days, in the last financial year. This means if a person has to be assessed, as to whether he is person resident in India , for any offence committed in August 2001, then he should be residing in India for more than 182 days during April 2000 to March 2001
2. Any person or body corporate registered or incorporated in India , or
3. An office, branch or agency in India owned or controlled by a person resident outside India , or
4. An office, branch or agency outside India owned or controlled by a person resident in India .

However, in following cases a person shall not be person resident in India ", even if he is residing in India for more than 182 days in the last financial year:

1. A person who has gone abroad, for :

• Taking up employment outside India or
• For carrying on any business outside India , or
• For any other purpose, which itself would indicate his intention to stay outside India for an uncertain period.

2. Similarly, a person who has come to India for any purpose except :

• Taking up employment in India , or
• Carrying on any business in India , or
• For any other purpose, which itself would indicate his intention to stay in India for an uncertain period

C. Person resident outside India

Simply putting it, "a person resident outside India " means "a person who is not resident in India "

Implication on different categories

Person resident in India

Provision of FEMA, are applicable with different implication on Person resident in, and outside India .

With respect to " Person Resident in India", they are: -

1. A person who is resident in India, can acquire, hold, own possess or transfer any foreign Exchange, foreign security or any immovable property situated outside India, only according to FEMA

FOREIGN SECURITY: means any security, in the form of shares, stocks, bonds, debentures or any other instrument denominated or expressed in foreign currency and includes securities expressed in foreign currency, but where redemption or any form of return such as interest or dividends is payable in Indian currency

2. The Reserve Bank of India (R.B.I), may prohibit, restrict or regulate any of the following:

3. Transfer or issue of any foreign security by a person resident in India .
4. Any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India.
5. Deposits between persons resident in India and person resident outside India :
   R.B.I. may make all these restrictions, in general or with respect to "Capital Account Transactions."
   "CAPITAL ACCOUNT TRANSACTIONS" means a transaction, which alters the assets or liabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons resident outside India.
6. Giving of a guarantee or surety in respect of any debt, obligation or other liability incurred, by a person resident in India and owed to a person resident outside India .
7. Transfer of immovable property outside India , other than a lease not, exceeding five years, by a person resident outside India .

3. A person resident in India may hold, own transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India.
4. If any amount of foreign exchange has become due or has accrued to any person resident in India , then he shall take steps to realize and bring it back to India within the time frame and manner specified by Reserve Bank

PERSON RESIDENT OUTSIDE INDIA

Implications of FEMA, on "Person Resident outside India ", are as follows:

1. For making any sort of payment in any manner, to a "person resident outside India", provisions of FEMA has to be complied, and also general or special permission of Reserve Bank is required Similarly, for receiving any payment by order or on behalf of any "person resident outside" in any manner, provisions of FEMA has to be complied, and also general or special permission of Reserve Bank is required.
2. The Reserve Bank may prohibit, restrict or regulate any of the following

• Transfer or issue of any security by a person resident outside India .
• Transfer or issue of any security or foreign security by any branch, office or agency in India of a "person resident outside India ."
• Any borrowing or lending in rupees in whatever name called between a "person resident in India " and a "person resident outside India "
• Deposit between "persons resident in India " and "persons resident outside India "
• Acquisition or transfer of immovable property in India other than a lease, not exceeding five years, by a person resident outside India .
• Giving of a guarantee or surety in respect of any debt, obligation or other liability incurred, by a person resident outside India .

The Reserve Bank of India may also regulate the above noted activities, with respect to "Capital Account Transactions".

3. A "person resident in India " may hold, own, transfer or invest in foreign currency, foreign security, or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was ' resident outside India" or inherited from a "person who was resident outside India."
4. 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
5. Reserve Bank may by regulation, prohibit, restrict, or regulate establishment in India of a branch, office or other place of business by a "person resident outside India ", for carrying on any activity relating to such branch, office or other place of business.