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Transfer Of Shares Between Resident And Non-Resident (Private Limited Companies)

February 20, 2018     by Mayank Verma

 

Transfer of shares between two residents (of India) involves payment of consideration (buyer to the seller) and execution of share transfer deed. Share transfer deed to be duly stamped @ 0.25% of the consideration amount. When the transaction is between a resident and a non-resident, there are regulations concerning inward and outward remittance of funds, valuation of shares and submission of form FC-TRS on e-biz portal. The Reserve Bank of India (RBI) through Notification No. FEMA 20(R)/ 2017-RB dated November 07, 2017, made Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2017 to regulate investment in India by a Person Resident outside India.

FC-TRS

 

FORM FOREIGN CURRENCY-TRANSFER OF SHARES (FC-TRS):

Form FC-TRS is required to be filed for transfer of capital instruments (Equity Shares, Fully and Compulsory Convertible Securities) of an Indian Company in the following cases:

  1. When the transfer is made between a person resident outside India (repatriable basis) and a person resident outside India (non-repatriable basis)
  2. When the transfer is made between a person resident outside India (repatriable basis) and a person resident in India.

 

Who is to file form FC-TRS?

Transfer of capital instruments prescribed above shall be reported on receipt of every tranche of payment. One of the important dilemma between public at large is that who has to file this form with Authorised Dealer Bank?

The onus of reporting FC-TRS shall be on the resident transferor/ transferee or the person resident outside India holding capital instruments on a non-repatriable basis, as the case may be.

 

What is the Time Limit for filing FC-TRS?

The form FCTRS shall be filed with the Authorised Dealer bank within sixty days of transfer of capital instruments or receipt/ remittance of funds whichever is earlier.

 

What is the Procedure for filing FC-TRS?

The following steps are included in filing of FC-TRS form:

  1. Execution of Share Transfer Deed and Payment of Stamp Duty: The parties should execute the following documents for transferring their shares:
    • Share Transfer Deed as per SH-4
    • Duly signed Consent letters from the buyers and seller.

Note: While executing the share transfer deed, stamp duty @ 0.25 % on the consideration amount is to be paid by purchasing the share transfer stamps, affixing those on the SH-4 and then crossing the same.

  1. Transfer of Funds: The funds should be transferred through proper Banking channels. Copy of FIRC and copy of KYC of person resident outside India should be obtained from Authorised Dealer Bank.
  1. Registration on E-biz portal: it is mandatory to register the details of the person filing form along with his/her digital signatures (DSC) on e-biz portal.
  1. Filing of form on E-Biz portal with the required attachments: The form is filled online on E-biz portal along with the name of attachments given below. The DSC of the concerned person is affixed while submitting form.
  1. Scrutiny from AD Bank: Post submitting form on E-Biz portal, AD bank scrutinize each and every application and it may send the form for re-submission if any documents/information is incorrect or missing.
  1. Sanction letter/ Certificate issued by AD Bank: AD Bank provides you with a sanction letter or certificate if all the documents and information are satisfactory to them. This is a documentary evidence which states that FDI compliances are duly taken care off by the applicant.
  1. Take on record by the Indian Company: The sanction letter/certificate issued by AD bank is attached with the share transfer form and share certificate and submitted to the Company so that company may take the transfer on its record.

Additional Step may be required in delay submission of FC-TRS: In case the applicant fails to file FC-TRS within 60 days of transfer, then the AD Bank will forward the application to RBI for its approval.

 

Is there any Statutory Fees for filing FC-TRS?

There is no upfront (like MCA portal) statutory fees for filing FC-TRS on E-biz portal, but AD Bank may charge for processing FC-TRS. The processing fees may vary from Bank to Bank. The bank may ask for an authorisation from Applicant in order to deduct the bank charges from account.

 

What are the Attachments to be filed with form FC-TRS on E-biz portal?

Form FC-TRS is an online form that is to be filled and filed through E-biz portal along with the following important documents:

  1. Consent Letter from Buyer and Seller.
  2. Copy of FIRC in cases of foreign remittance is received by resident Indian.
  3. Copy of KYC of the buyer (NRI) on the letterhead of the bank.
  4. Valuation Report from the Certified Valuer certifying the value of shares.

 

Is there any prescribed method for valuation of shares?

Price of share shall be decided on the basis of valuation of Shares as per any internationally accepted pricing methodology for valuation on an arm’s length basis duly certified by a Chartered Accountant or a SEBI registered Merchant Banker or a practicing Cost Accountant.

  • While transferring shares from resident to non-resident, the minimum bar on price is set. The price cannot be less than the price determined from the valuation report.
  • In case the shares are transferred from non-resident to resident investor, the upper cap for price is set. The price cannot be more than the price determined from the valuation report.

 

 

 

14 thoughts on “Transfer Of Shares Between Resident And Non-Resident (Private Limited Companies)

  1. The share is transferred from resident to non resident, FCTRS is to be filed in Individual capacity or is to be filed by the company whose shares are transferred.

    1. As per Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2017 the onus of reporting is on the resident transfer/transferee.
      As per the current scenario, individuals cannot be registered on FIRMS portal. Therefore, the liability of filing FC-TRS is on the Company whose shares are being transferred.

  2. What are the sectoral caps and FDI Policy applicability of an Indian Company with Software Testing and Development operations?

  3. Where foreign Company shares are transferred from resident to Non resident what are the compliance’s to be done?

    1. In accordance to Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2000
      “A person resident in India, who has acquired or holds foreign securities in accordance with the provisions of the Act, rules or regulations made thereunder, may transfer them by way of pledge for obtaining fund based or non-fund based facilities in India from an authorised dealer”
      For further detailed information you can visit your respective AD Bank.

  4. In case of transfer of 99% share capital of an indian company (Health Sector) to a Foreign Company, will it be under Automatic route or Approval route?

    1. As per FDI policy, 100% investment in the manufacturing of Medical devices under automatic route is allowed.
      We shall need more information on the exact business of the company to provide conclusive answer.

  5. Non resident has transferred shares to 2 indian resident amounts to Rs. 450 , so we need to take tax clearance certificate for this transaction?? and tax clearance certificate is required every time when transfer from resident to non resident and vice versa.
    Please reply.
    Thanks in advance.

    1. As mentioned in regulation 12 of Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017, all transaction under these regulations shall be subject to payment of applicable taxes and other duties/ levies in India irrespective of the amount remitted.
      Therefore, it is mandatory to obtain tax clearance certificate from either Income tax Authority or from the Chartered Accountant

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