Late FEMA reporting is one of the most common issues we see when reviewing foreign-owned Indian companies, usually just before a fundraise, a share transfer or an exit. The good news is that most reporting delays can be regularised without compounding. The bad news is that the window is not unlimited and the cost rises the longer it is left. This article explains the practical route.
Step 1: Build a complete list of what is missing
Start with the company’s share capital history and match every event against the FIRMS portal records:
- each allotment of shares to a non-resident (FC-GPR);
- each transfer between a resident and a non-resident (FC-TRS);
- each downstream investment made by the company, if it is foreign-owned or controlled (Form DI);
- every year’s Annual Return on Foreign Liabilities and Assets (FLA);
- ESOPs to non-resident employees and convertible notes, if any.
In practice, the gaps are usually an FC-GPR filed after 30 days, an FLA return never filed for one or two years, or a Form DI that nobody knew was required.
Step 2: Separate reporting delays from substantive breaches
A reporting delay is where the transaction itself complied with FEMA but the form was filed late. A substantive breach is where the transaction did not comply, for example shares issued below fair value, allotment beyond the permitted period without refund, or investment in a sector that needed approval.
Reporting delays can generally be regularised by paying a Late Submission Fee. Substantive breaches need compounding by the RBI.
Step 3: File with the Late Submission Fee
The Late Submission Fee is computed under a formula prescribed by the RBI, with a fixed amount plus a component based on the amount involved and the period of delay. The fee is paid through the AD bank, and the form is filed on FIRMS with the LSF details. The AD bank or RBI will examine the filing and may raise queries.
Keep in mind:
- LSF is available only within the outer time limit specified by the RBI from the original due date;
- the LSF route does not cure a substantive breach;
- each missing form needs its own LSF computation.
Step 4: Compounding where needed
Where LSF is not available, or the default is substantive, the company applies to the RBI for compounding with a detailed application, documents and a compounding fee determined by the RBI. Compounding takes longer and costs more, and it is best done before a transaction rather than as a condition precedent under time pressure.
Step 5: Prevent recurrence
- Register the entity and a business user on FIRMS before money arrives.
- Put FC-GPR, FC-TRS, DI and FLA dates on a single compliance calendar.
- Make one person accountable for FEMA reporting.
- Ask the auditor to confirm FEMA reporting status every year.
Conclusion
Late FEMA reporting is fixable, but only if it is identified early and classified correctly. A short historical review, followed by LSF filings or compounding as needed, usually takes far less time than dealing with the same gaps under the pressure of a live transaction.
N. Sudheer, M.Com., FCS, LL.B. is a Partner at A2 Consultants, Hyderabad, advising foreign companies on FDI, FEMA and corporate compliance in India. Views are personal.
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