Fema

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Rakhi (Querist)
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04 December 2012 if an individual subscribe to the MOA and he is the sole person who is director and shareholder of the Company in a country outside India then what is the compaliance area under RBI?

Ajay Mishra

Ajay Mishra (Expert)
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04 December 2012 Hi

There are some instruction for being a subscriber of MOA/AOA of Indian Company:

NON-RESIDENT INDIAN AS SUBSCRIBER TO THE MOA/AOA

The Reserve Bank of India had given general permission under section 29(1)(b) of the former FERA, 1973 to NRI to subscribe to the MOA of an Indian company and to take shares as a subscriber .(Notification No. FERA 143/93-RB, dated 26-4-1993 issued by RBI, Mumbai in this regard is reproduced hereunder:

“The RBI has given general permission to NRI to subscribe to the MOA/AOA of Indian Company for the purpose of Incorporation of the company subject to the condition that:-

(a) the total face value of the shares to be taken by NRI does not exceed Rs. 10,000
(b) the company is being manly formed for undertaking industrial activities
(c) the MOA of such company does not permit the company to take up any agriculture/plantation activities and to deal in real estate business other than developing real estate, and
(d) such company shall file a declaration in the prescribed form with the RBI regarding particular of such shares issued within 900days from the date of incorporation of the company.

DCA Circular dated 16-2-1995 clarifies that there can not be any restriction for incorporation of a company whether all the subscriber to the MOA/AOA/ proposed directors are residing abroad, being either foreign nationals, or NRI subject to the approval of RBI, where necessary.

The RBI may issue such a general permission also under FEMA, 1999 also. The FEMA(Permissible Capital Account Transactions) Regulations, 2000 allow persons resident outside India to invest in an issue of security by body corporate or an entity in India.

Now, it has been decided by RBI through Circular No. 36 dated 26.09.2012 that in cases, where non-residents (including NRIs) make investment in an Indian company in compliance with the provisions of the Companies Act, 1956, by way of subscription to Memorandum of Association, such investments may be made at face value subject to their eligibility to invest under the FDI scheme.

For more details go to the following link:

https://rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=7590

Rakhi

Rakhi (Querist)
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04 December 2012 thanks for the reply but I am asking about an individual indian who is subscribing to MOA outside india in a Company in which he is sole Director and Shareholders.

Ajay Mishra

Ajay Mishra (Expert)
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04 December 2012 Hi

For this you should check the law of that country where the Individual is going to subscribe. Please also check his banker about remitting provision as per RBI norms. Also read ODI Guidelines.

Rakhi

Rakhi (Querist)
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04 December 2012 thanks sir.

Ajay Mishra

Ajay Mishra (Expert)
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04 December 2012 My pleasure...............

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