FIIs are contributing to the foreign exchange inflow as the funds from multilateral finance institutions and FDI are insufficient, says Abhijit Roy THE RECENT spat over the tax authorities issuing notices to foreign institutional investors (FIIs) which take advantage under the Indo-Mauritius Bouble Taxation Avoidance Agreement, has once again drawn attention to the role that FII investment is playing in the capital markets in India. This article endeavours to place the overall picture in perspective.

The Union Government allowed the entry of FIIs in order to encourage the capital market and attract foreign funds to India. Today, FIIs are permitted to invest in all securities traded on the primary and secondary markets, including equity shares and other securities listed or to be listed on the stock exchanges. The original guidelines were issued in September 1992. Subsequently, the Securities and Exchange Board of India (SEBI) notified the SEBI (Foreign Institutional Investors) Regulations, 1995 in November 1995. Over the years, different types of FIIs have been allowed to operate in Indian stock markets.

They now include institutions such as pension funds, mutual funds, investment trusts, asset management companies, nominee companies, incorporated/institutional portfolio managers, university funds, endowments, foundations and charitable trusts/societies with a track record. Proprietary funds have also been permitted to make investments through the FII route subject to certain conditions. The SEBI is the nodal agency for dealing with FIIs, and they have to obtain initial registration with SEBI. The registration fee is $10,000.

For granting registration to an FII, the SEBI takes into account the track record of the FII, its professional competence, financial soundness, experience and such other criteria as may be considered relevant by SEBI. Besides, FIIs seeking initial registration with SEBI will be required to hold a registration from an appropriate foreign regulatory authority in the country of domicile/incorporation of the FII. The broadbased criteria for FII registration has recently been relaxed. An FII is now considered as broadbased if it has at least 20 investors with no investor holding more than 10 per cent of shares/units of the company/fund.

The SEBI’s initial registration is valid for five years. The Reserve Bank of India’s general permission to FIIs will also hold good for five years. Both will be renewable. There are approximately 500 FIIs registered with SEBI, but not all of them are active. The RBI, by its general permission, allows a registered FII to buy, sell and realise capital gains on investments made through initial corpus remitted to India, subscribe/renounce rights offerings of shares, invest in all recognised stock exchanges through a designated bank branch and appoint domestic custodians for custody of investments held.

FIIs can invest in all securities traded on the primary and secondary markets. Such investments include equity/debentures/warrants/other securities/instruments of companies unlisted, listed or to be listed on a stock exchange in India including the Over-the-Counter Exchange of India, derivatives traded on a recognised stock exchange and schemes floated by domestic mutual funds. A major feature of the guidelines is that there are no restrictions on the volume of investment – minimum or maximum – for the purpose of entry of FIIs.

There is also no lock-in period prescribed for the purpose of such investments. Further, FIIs can repatriate capital gains, dividends, incomes received by way of interest and any compensation received towards sale/renouncement of rights offering of shares subject to payment of withholding tax at source. The net proceeds can be remitted at market rates of exchange. All secondary market operations would be only through the recognised intermediaries on the Indian stock exchanges, including OTCEI.

Forward exchange cover can be provided to FIIs by authorised dealers both in respect of equity and debt instruments, subject to prescribed guidelines. Further, FIIs can lend securities through an approved intermediary in accordance with stock lending schemes of SEBI. Investment restrictions Portfolio investments in primary or secondary markets were initially subject to a ceiling of 24 per cent of issued and paid up share capital for the total holdings of all registered FIIs in any one company, taking into account the conversions arising out of the fully and partly convertible debentures issued by the company.

Further, the maximum holding of 24 per cent, for all FII investments did not include portfolio investments by non-resident Indians (NRIs), NRI-OCBs (overseas corporate bodies), direct foreign investments, offshore single/regional funds, global depository receipts and euro convertibles. In the case of public sector banks, the overall limit is 20 per cent of the paid-up capital. In 1997, it was decided to increase the limit of aggregate investment in a company by FIIs to 30 per ent of issued and paid-up share capital, subject to the condition that the board of directors of the company approved the limit and the general body of the company passed a special resolution in this behalf. Further, the Finance Minister in his budget speech in February this year announced that, subject to approval by the board of directors and a special resolution of the general body of the company, this limit of foreign portfolio investment was being increased to 40 per cent of issued and paid-up capital of a company.

The holdings of a single FII in any company are also subject to a ceiling of 10 per cent of total issued capital. For this purpose, the holdings of an FII group will be counted as holdings of a single FII. In addition to FIIs, NRIs, OCBs and Persons of Indian Origin (PIOs) are allowed to invest in the primary and secondary capital markets in India through the portfolio investment scheme (PIS). Under this scheme, NRIs/OCBs/PIOs can acquire shares/debentures of Indian companies through stock exchanges in India. The ceiling on overall investment is 10 per cent for NRIs/OCBs/PIOs.

This ceiling can be raised to 24 per cent, subject to the approval of the general body of the company passing a resolution to that effect. Further, the ceiling for FIIs is independent of the ceiling of 10/24 per cent for NRIs/OCBs/PIOs. If one adds the amount that can be raised by Indian companies in the form of FDI and euro issues, one realises that the foreign investment norms applicable to Indian companies have become liberal. The RBI monitors the ceilings on FII/NRI/OCB/PIO investments in Indian companies on a daily basis.

In order to prevent crossing of the ceilings, the RBI has fixed cut-off points that are two percentage points lower than the actual ceilings. The cut-off point, for instance, is fixed at 8 per cent for companies in which NRIs/OCBs/ PIOs can invest up to 10 per cent of the company’s paid up capital. The cut-off limit for companies with 24 per cent ceiling is 22 per cent and for companies with 30 per cent ceiling, is 28 per cent. Similarly, the cut-off limit for public sector banks (including State Bank of India) is 18 per cent.

Once the aggregate net purchases of equity shares of the company by FIIs/NRIs/OCBs/PIOs reach the cut-off point, the RBI cautions all designated bank branches so as not to purchase any more equity shares of the respective company on behalf of FIIs/NRIs/OCBs/PIOs without prior approval of the RBI. On reaching the aggregate ceiling limit, the RBI advises all designated bank branches to stop purchases on behalf of their FIIs/NRIs/OCBs/PIOs clients. The RBI also informs the general public about the `caution’ and the `stop purchase’ in these companies through press releases.

Under the FII route for investment under the portfolio management scheme, there are two basic routes for investment by FIIs. The first is for mainly equity related instruments wherein the quantum of debt instruments can be up to a maximum of 30 per cent of the total investment. The other scheme is for 100 per cent debt related instruments. Transactions in debt securities include transactions in government securities and treasury bills which will be carried out in a manner specified by the RBI.

Investments under the 100 per cent debt route will be permitted in debentures which are listed or to be listed, dated government securities and treasury bills. FII investment in debt through the 100 per cent debt route is subject to an overall debt cap for investment by all FIIs. These dedicated debt funds for the purpose of balance of payment management will come under the overall level of external commercial borrowings. Individual ceilings will depend on the track record of the FII and its experience in managing debt funds in emerging markets.

The Government is a little wary of allowing substantial investments in the debt market, including investment in treasury bills, on account of the experience of some nations where once the exchange rate came under pressure, there was sudden outflow of funds, thus worsening the exchange rate and balance of payment positions further. For carrying out transactions, the FIIs should designate a bank branch and open accounts in that branch. The investment operations of FIIs will be conducted through the bank branch designated by them.

The RBI will permit the designated bank branch to open a foreign currency denominated account and a special non-resident rupee account in the name of the FII. The FII will also be permitted to (a) transfer funds from foreign currency account to rupee account and vice versa, (b) make investments out of the balance in the rupee account, (c) credit the sale proceeds of shares and other investments as also dividend/interest earned on the investments in the rupee account, and (d) transfer the repatriable proceeds (net of taxes) from the rupee account to the foreign currency account.

The RBI will make available to the designated bank branches a list of companies where no further investment will be allowed. FIIs can also appoint as custodian, an agency approved by SEBI. The custodian will be in charge of all securities of the FII and will report to SEBI/RBI in order to comply with the disclosure and reporting guidelines. At present there are 14 registered custodians. There are however some restrictions. An FII will not engage in any short selling in securities. Also, it has to take delivery of securities purchased and effect delivery of securities sold.

Firm allotment to FIIs in public issues can be done subject to the maximum ceiling applicable for all FIIs and 10 per cent for a single FII. Preferential allotment also can be made to FIIs subject to ceilings and fulfilment of certain conditions including price norms. The price at which the shares are offered should be the higher of the following: The highest price during the last 26 weeks prior to the relevant date, that is, 30 days prior to the date of the resolution passed by the general body of shareholders under Sec. 1(1A) of the Companies Act. The average price of the weekly high and low of the closing prices during the two weeks preceding the relevant date. Tax provisions The tax on interest payment on bonds held by FIIs is 20 per cent. Dividend on shares held by them is exempt after June 1, 1997. Short-term capital gains are taxed at 30 per cent while long-term capital gains are taxed at 10 per cent. The provisions of Avoidance of Double Taxation Agreement will however be applicable.

However, on account of the concessional rate of income tax on capital gains, the provisions now available to non-residents for protection from fluctuation of the rupee value against foreign currency for computing capital gains arising from the transfer of securities of an Indian company will not apply to the FIIs which are covered under Sec. 115AD of the Income-tax Act. Further, the benefit of cost inflation indexation will also not be available to FIIs while computing long-term capital gains arising to them on transfer of securities.

Shares in a company will have to be held for more than 12 months in order to qualify as a long-term capital asset. Other securities will have to be held for more than 36 months in order to qualify as a long-term capital asset. The tax benefits accorded to FIIs have become a controversial issue. The route taken by FIIs for investment in India has been usually the Mauritius route as Mauritius based residents, including FIIs, will not be taxed in respect of capital gains on sale of business. It was known from the beginning that FIIs were taking this route in order to take advantage of the treaty, and once a certificate of residency is issued y the Mauritius authorities, Indian tax authorities do not have any option but to accept this method of investing in India. The question then arises as to the wisdom of allowing this route. One argument of levying a tax is that domestic investors have to pay tax in the case of capital gains, which is now 10 per cent in the case of shares and units. On the other hand, the FIIs say that India is competing with other capital markets, and in most cases no capital gains are payable. The debate continues. Foreign brokers in India

With a view to facilitating the operational procedures for foreign institutional investment in India and encouraging the present investment trends, it was decided to increase the role of foreign brokers in transactions of FIIs by allowing them to provide assistance to the FIIs registered with SEBI in their dealings in India. A few foreign broking firms have set up fully owned subsidiaries in India. These broking outfits can deal directly in the Indian stock markets. Further, custodial services could be rendered by custodians approved by SEBI.

The FIIs have been playing a major role in the Indian capital market with cumulative investments having reached $11. 24 billion by March-end 2000. As compared to this, the cumulative amount of foreign direct investment (FDI) since 1991 up to December end 1999 has been estimated at $19. 2 billion. The market capitalisation varies depending on share market prices. Impact on prices Along with the domestic mutual funds, the FIIs have started playing a critical role in the movement of stock prices. The assets under management of domestic mutual funds have crossed Rs. 00,000 crores. About half of these funds are income funds, and the remaining balanced funds and equity funds. Hence, the FIIs and the domestic mutual funds play an important part in the movement of stock prices. A few other developments have strengthened the role of the FIIs. The Unit Trust of India’s share in mutual fund collection has been going down. In fact, the UTI today is more successful with its income funds rather than with equity funds. In recent months, privately managed domestic mutual funds have been the most successful in garnering fresh funds from the public.

Not surprisingly a few of these foreign owned fund managers are also well known names among FIIs. Another development during recent years has been the declining role of development financial institutions (DFIs) such as IDBI, ICICI and IFCI in the capital markets. This is partly on account of their limited access to cheap funds and partly because of the withdrawls of the convertibility clause under which these DFIs managed to acquire equity shares of companies which were financed by them.

A positive contribution of the FIIs has been their role in improving the stock market infrastructure. The SEBI has no doubt contributed much in improving the stock exchange infrastructure. However, it is doubtful whether one would have witnessed such rapid developments in computerising the operations of the stock markets and introduction of paperless trading in the demat form if the FIIs had not built up pressure on the authorities to move in this direction. The FIIs are playing an important role in bringing in funds needed by the equity market.

Additionally, they are contributing to the foreign exchange inflow as the funds from multilateral finance institutions and FDI are insufficient. However, the fact remains that FII investments are volatile and market driven, but this risk has to be taken if the country has to ensure steady inflow of foreign funds. * * * The Securities and Exchange Board of India is the nodal agency for dealing with FIIs. An FII is considered broadbased if it has at least 20 investors with no investor holding more than 10 per cent of shares/units of the company/fund.

The Reserve Bank of India, by its general permission, allows a registered FII to buy, sell and realise capital gains on investments made through initial corpus remitted to India. FIIs can invest in all securities traded on the primary and secondary markets. FIIs can repatriate capital gains, dividends, incomes received by way of interest and any compensation received towards sale/renouncement of rights offering of shares subject to payment of withholding tax at source. The RBI monitors the ceilings on FII/NRI/OCB/PIO investments in Indian companies on a daily basis.

Portfolio investments in primary or secondary markets were initially subject to a ceiling of 24 per cent of issued and paid up share capital. In 1997, it was decided to increase the limit of aggregate investment in a company by FIIs to 30 per cent. The Finance Minister in his budget speech in February this year announced that, subject to approval by the board of directors and a special resolution of the general body of the company, this limit of foreign portfolio investment was being increased to 40 per cent of issued and aid-up capital of a company. The provisions of Avoidance of Double Taxation Agreement will be applicable. The route taken by FIIs for investment in India has been usually the Mauritius route. Mauritius based residents, including FIIs, will not be taxed in respect of capital gains on sale of business provided they have a certificate of residency from that government. Along with mutual funds, FIIs have a crucial role in stock price movements.