FEMA’s Role in India: Applicability and Scope

Dive into FEMA's pivotal role in India's financial landscape. Uncover its broad applicability, significant scope in economic regulations and investment controls

The Indian parliament passed the Foreign Exchange Management Act (FEMA) in 1999, replacing the Foreign Exchange Regulation Act (FERA). Effective since 29 December 1999, FEMA harmonises with World Trade Organisation principles. The Reserve Bank of India (RBI) issues regulations enabling the government to formulate foreign exchange rules under Indian law. This article delves into FEMA Role in India vital functions and its involvement in foreign exchange matters.

FEMA Role in India

The Foreign Exchange Management Act (FEMA Act 1999) holds great significance in India as it governs foreign exchange operations within the nation. Its importance can be summarised as follows:

• Facilitates Foreign Exchange Transactions: Foreign Exchange Management Act of 1999 establishes the legal framework for foreign exchange transactions, allowing Indian residents and entities to engage in the acquisition, possession, and transfer of foreign exchange as per the Act’s provisions
• Regulates Foreign Exchange Transactions: Empowering the Reserve Bank of India (RBI), the Act grants authority to oversee and regulate foreign exchange activities in India. RBI’s role is to monitor and control the inflow and outflow of foreign exchange, ensuring stability in the forex market
• Safeguards National Interest: Foreign Exchange Management Act of  1999 ensures that foreign exchange transactions within India are conducted in a manner that safeguards national interests. It prohibits specific transactions that could jeopardise the country’s economic and financial stability
• Imposes Penalties for Non-Compliance: The Act imposes penalties for those who fail to adhere to its provisions. This serves as a deterrent against illegal foreign exchange dealings
• Promotes Business-Friendly Environment: Foreign Exchange Management Act of 1999 simplifies regulations governing foreign exchange transactions in India. This fosters a business-friendly environment, encouraging foreign investment in the country.

Applicability of the Foreign Exchange Management Act, 1999

The Foreign Exchange Management Act, 1999 extends its jurisdiction across all of India and applies equally to entities situated outside India, owned or managed by an Indian citizen. The central office for FEMA is located in New Delhi and is known as the Enforcement Directorate. FEMA’s applicability encompasses:

• Foreign exchange transactions
• Dealing with foreign securities
• Exporting commodities and services from India to foreign countries
• Importing commodities and services from foreign sources
• Securities as defined in the Public Debt Act of 1994
• Transactions involving the purchase, sale, or exchange of any nature
• Activities related to banking, finance, and insurance services
• Overseas companies owned by NRIs (Non-Resident Indians) with ownership stakes of 60% or more
• Indian citizens, whether residing within the country or abroad, including NRIs.

Current Account 

The Current Account transactions governed by the Foreign Exchange Management Act of 1999  are divided into three categories, specifically:

• Transactions prohibited by FEMA.
• Transactions necessitating the Central Government’s approval.
• Transactions requiring permission from the RBI.

FEMA Guidelines for Individuals

Individuals need to adhere to FEMA guidelines in a variety of scenarios, including:

• Foreign Travel and Remittances: Resident Indians are permitted to remit a certain amount of money abroad each financial year without approval from the Reserve Bank of India (RBI). However, there are limits on the amount that can be remitted for certain purposes, such as investment or purchase of property
• Foreign Exchange Accounts: Resident Indians can open and maintain foreign currency accounts with authorised dealers. However, there are restrictions on the types of transactions that can be carried out through these accounts
• Gifts and Inheritance: Resident Indians can receive gifts and inheritance from non-resident Indians (NRIs) and persons of Indian origin (PIOs). However, there are limits on the amount that can be received and the types of gifts that are permitted.
• Overseas Employment: Resident Indians who are employed overseas need to comply with FEMA guidelines on matters such as remittance of salary and other income to India, as well as on the repatriation of savings on return to India
• Investment in Foreign Assets: Resident Indians are permitted to invest in foreign assets, such as shares, bonds, and real estate. However, there are limits on the amount that can be invested and the types of investments that are permitted.

FEMA Guidelines for Businesses

Businesses need to adhere to FEMA guidelines in a variety of scenarios, including:

• Foreign Investment: Foreign investors need to comply with FEMA guidelines on matters such as the types of investments that are permitted, the sectors that are open to foreign investment, and the limits on foreign investment in certain sectors
• External Commercial Borrowings (ECBs): Indian companies can raise funds from abroad through ECBs. However, there are restrictions on the amount that can be borrowed, the purpose of the borrowing, and the interest rate that can be paid
• Foreign Trade: Indian companies need to comply with FEMA guidelines on matters such as export and import of goods and services, as well as on the settlement of international trade transactions
• Overseas Branches and Subsidiaries: Indian companies that have overseas branches and subsidiaries need to comply with FEMA guidelines on matters such as remittance of funds to and from the overseas entities, as well as on the repatriation of profits.

Scenarios Where Individuals and Businesses Need to Adhere to FEMA Guidelines

• An individual who is planning to travel abroad for vacation: The individual will need to comply with FEMA guidelines on the amount of foreign exchange that they can carry with them and the types of transactions that they can carry out with their foreign currency account
• A business that is planning to import goods from China: The business will need to comply with FEMA guidelines on the settlement of the import transaction, as well as on the documentation that needs to be submitted to the customs authorities
• An NRI who is planning to gift money to their parents in India: The NRI will need to comply with FEMA guidelines on the amount of money that they can give and the types of gifts that are permitted
• An Indian company that is planning to raise funds through an ECB: The company will need to comply with FEMA guidelines on the amount that it can borrow, the purpose of the borrowing, and the interest rate that it can pay
• An Indian company that has an overseas branch: The company will need to comply with FEMA guidelines on the remittance of funds to and from the overseas branch, as well as on the repatriation of profits.

Conclusion

In the complex landscape of foreign exchange regulations and the critical role played by the Foreign Exchange Management Act, 1999 Vakilsearch emerges as your trusted partner in navigating this intricate terrain. Our legal expertise is your shield against external risks and dominance in the ever-evolving global financial arena.

At Vakilsearch, we understand the significance of compliance with FEMA Role in India and its implications for your financial interests. With our seasoned team of legal experts, we offer tailored solutions to ensure that your transactions remain within the bounds of the law while capitalising on growth opportunities. Whether you’re an individual, a business entity, or an NRI, our services are designed to cater to your specific needs, regardless of your location.