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Dr. Shakuntala Misra National Rehabilitation University Lucknow
Dr. Shakuntala Misra National Rehabilitation University Lucknow
A Project on
SHAIL SHAKYA
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INVESTMENT AND SECURITIES LAW 2017
TABLE OF CONTENTS
1. Introduction………………………….…………………………………………..3
2. Raising of Capital………………………………..………………………………4
3. Depository Receipt…………………………………………..………………...4-8
a. Who can capitalize on IDRs…………………………………………..4-6
b. Benefits of IDRs……………………...……………………………….6-8
c. Benefits to investor…………………...…………………………………8
4. IDRs Provision……….…………………………………................................8-13
a. Eligibility to Invest…………………………………..………………….9
b. Issuer’s Eligibility……………………………………..…………….…..9
c. Requisites for making an issue of IDRs………………………….....9-10
d. Other Requisites……………………………………………………10-11
e. The RBI circular……………………………………………...…….11-12
f. Penalty for Contravention…………...……………………………..12-13
5. Conclusion ………………………………………………………….…………14
6. Bibliography…………………………………...………………………………15
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1. INTRODUCTION
The New Economic Order, or “NEO” introduced by Dr. Manmohan Singh as Finance
Minister in 19911, initiated the liberalization and deregulation process of the Indian
economy. Today, the Indian economy is one of the most fundamentally sound and
progressive economies; a fact that is manifested by the continued and sustained GDP
growth in the region of 7-8 per cent per annum. Even in the current global recessionary
environment, the Indian economy has been resilient as it continues on its high growth
path. With the advent of globalization Indian companies have entered into raising funds
from foreign markets. The trend still continues but it is time to flip the coin and witness
the other side. With the advent of globalization, there is a need amongst the investors to
expand their horizons beyond their local security markets. In keeping with India’s
ongoing popularity as a preferred investment destination among international entities and
India’s aspirations to become a financial hub internationally, the Union government
together with other regulatory bodies has consistently introduced and modified various
instruments through which investments can be made. In the recent years there has been
an increased internationalization of various firms through cross listings on international
exchanges, which has been supported by the process of market liberalization that has
therefore provided greater integration of global securities markets. Globalization has
affected every industry, every sector, every nation and every economy, giving rise to the
concept of the world being a global village, which is having no boundaries. Cross border
listing by the various companies has become one of the important avenues for the
integration of global securities markets. There are namely direct listing and indirect
listing as two forms of cross-border. The meaning of the direct listing implies that the
firm concerned offers ordinary shares to the public while on the other hand Indirect
listing on exchanges is through Depository Receipts (DRs). One such instrument which
has been introduced is the Indian Depository Receipts (IDRs). IDRs are depository
receipts denominated in Indian Rupees and transferable securities listed on Indian stock
exchanges in the form of depository receipts issued by a foreign investor. IDRs are
similar to the Global Depository Receipts and American Depository Receipts, which
allow companies to raise funds from European and American markets, respectively.
Therefore through IDR foreign companies can directly raise capital in India rather than
take recourse to GDRs/ADRs and to improve the liquidity in the secondary market in
India. To encourage foreign issuers to raise funds from the Indian capital markets through
IDRs and enable investors in the domestic market to have investment opportunities in the
securities of major multi-national companies listed on well- developed markets, a legal
framework was created by the Ministry of Corporate Affairs, Reserve Bank of India and
Securities and Exchange Board of India. In the Indian context, a Depository Receipt is
referred to as an Indian Depository Receipt. Conceptually, the IDRs shall be issued by the
Issuing Company, i.e., a foreign corporation desirous of raising capital in the Indian
markets through an Indian financial institution the term IDR has been defined under the
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Companies (Issue of Indian Depository Receipts) Rules, 2004. It states that: “IDR is an
instrument in the form of a Depository Receipt created by the Indian depository in India
against the underlying equity shares of the issuing company.”1
2. RAISING CAPITAL
Indian companies have reached out to the global equity markets in the past by issuing
American Depository Receipts/Global Depository Receipts. It now appears that the time
is ripe for a role reversal. For overseas companies seeking to raise capital from the Indian
stock markets, the Indian Depository Receipt mechanism offers a way to do so. IDR is
not a new concept. It was introduced almost nine years ago on December 13, 2000 via
Section 605A of the Companies Act, 1956 and detailed guidelines governing IDRs were
first released on February 23, 2004 via the Companies (Issue of Indian Depository
Receipts) Rules, 2004.
3. DEPOSITORY RECEIPT
A company can raise capital from overseas markets through listing instruments on an
overseas stock exchange with its domestic securities as underlying. This preferred
instrument for raising capital is referred as depository receipt. A Depository Receipt is a
negotiable financial instrument listed and traded publicly on a local stock exchange
representing underlying shares of a foreign listed company. It enables investors to hold
shares in foreign companies. The most common types of Depository Receipts issued in
the global capital markets today are the ADR and GDR. A Depository Receipt contains
features of equity shares and carries rights, which are similar to rights attached to equity
shares. The Depository Receipt holder, thus, enjoys the right to appropriate disclosures
by the foreign company issuing Depository Receipts; the right to corporate benefits/
dividends attached to the Depository Receipts; and the right to vote under certain
circumstances.
In the Indian context, a Depository Receipt is referred to as an Indian Depository Receipt.
IDRs are transferable securities listed on Indian stock exchanges in the form of
depository receipts. Conceptually, the IDRs shall be issued by the Issuing Company, i.e.,
a foreign corporation desirous of raising capital in the Indian markets through an Indian
depository participant. The last mile issuance of actual instrument is done by an Indian
depository participant. The Indian depository participant will issue depository receipts
against the underlying equity shares of the foreign corporation.
a. Who can capitalize on IDRs
Foreign companies can list IDRs on Indian stock exchanges and offer their securities
to investors at large against a private placement of their own securities to access the
large pool of Indian investors. Considering the characteristics of IDRs, foreign
companies with the following objectives may seek to issue IDRs:
Companies seeking to benefit from the buoyant market conditions in India.
1
Companies(Issue of Indian Depository Receipts) Rules 2004, Rule 3(i)(d).
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IDRs also provide a unique opportunity for Indian investors to invest in foreign
companies. The current exchange control regulations, outlined below, provide
limited routes for Indian investors to invest in securities of foreign companies.
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entity engaged in the financial services sector should fulfill the following
additional conditions:
The Indian entity should be registered with the appropriate regulatory
authority in India for conducting the financial sector activities;
The Indian entity should have earned net profit during the preceding three
financial years from the financial services activities;
The Indian entity should have obtained approval for investment in
financial sector activities abroad from regulatory authorities concerned in
India and abroad; and
The Indian entity should have fulfilled the prudential norms relating to
capital adequacy as prescribed by the regulatory authority concerned in
India.2
b. Benefits of IDRS
Provides access to a large pool of capital: India boasts arguably of the largest
population of middle class families, which collectively have a substantial
amount of savings. In the last two decades, the Gross Domestic Savings rate
has increased consistently to reach close to 25 per cent of household income
adding net amount of about USD 240 billion worth new savings each year.
Combined with India’s 135 years of experience in investing in the stock
markets, the opportunities are ample for foreign companies to tap into this
large pool of capital for their equity needs.
Brand recognition in India: Using IDRs as a fund raising and investment
diversification strategy is expected to bring significant intangible benefits.
Instant visibility and sustained brand recall among Indian investors is a sure
gain from an IDR listing as has already been proven in the case of Indian
debutants in the global markets (e.g. Infosys in NASDAQ, Wipro on NYSE
etc.)
Facilitates acquisitions in India: Since an IDR is a rupee denominated
instrument, foreign companies, which intend to acquire business or assets in
India, can use it to finance acquisitions of any business or asset in India
through share swap. Also, IDRs can be used as an instrument to structure
2
The ODI Regulation, 2004, Regulation 7.
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3
Nishith Desai, “The Indian Depository Receipt”, 10 (2009).
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Additionally, the SEBI introduced guidelines to list IDRs on Indian stock exchanges
under Chapter VIA of SEBI (Disclosures and Investor Protection) Guidelines, 2000
(“DIP Guidelines”), which have recently been replaced by the by SEBI (Issue of Capital
and Disclosure Requirements) Regulations, 2009 (“ICDR Regulations”). Since then
various amendments have been made in the regulatory framework of IDRs , including the
recent Circular dated July 22, 2009 (“RBI Circular”) issued by the RBI, the exchange
control regulator in India, which renders clarity on the exchange control implication for
investment in IDRs.4
a. Eligibility to Invest
a. Indian Companies.
b. Qualified Institutional Buyers.
c. NRI's and FII's with permission of the Reserve Bank Of India
b. Issuer’s Eligibility
a. An average turnover of US$ 500 million during the previous 3 financial years.
b. A capital and free reserves aggregating to at least US$100 million.
c. Must be a profit making company for the previous 5 years and must have
declared a dividend of 10% in each such year.
d. The pre issue debt-equity ratio must be not more than 2:1.
e. Must be listed in its home country.
f. Must not be prohibited by any regulatory body to issue Securities
g. Must have a good track record with compliance with
Securities market regulations.
h. Must comply with any additional criteria set by SEBI.
c. Requisites for making an issue of IDRs
i. Permission from SEBI :
a. A company shall be able to raise funds in India by issuing IDRs unless
it has obtained prior permission from the SEBI:5
b. An application for the aforesaid purpose shall have to be made at least
90 days prior to the opening date of the issue, with a non-refundable
fee of US $10,000. On permission being granted, the applicant shall be
required to pay an issue fee of half a percent of the issue value subject
to a minimum of Rs.10 lakhs where the issue is upto Rs.100 crore in
Indian rupees. However, if the issue value exceeds Rs.100 crore, every
additional value of issue shall be subject to a fee of 0.25 percent of the
issue value.
4
Mahim Raj, “Adrs & Idrs : A Comparative Analysis”, Manupatra.
5
Indian Depository Rule, 2004, Rule 3(i)(d).
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6
Indian Depository Rule, 2004, Rule 5(ii)(a).
7
Indian Depository Rule, 2004, Rule 6(i).
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c) Issue Limit: IDRs issued in any financial year are not to exceed 15 per cent of
the paid-up capital and free reserves of the issuing company.
d) Denomination: IDRs issued shall be denominated in Indian Rupees.
e) Taxation: Although, the clause relating to IDR issue in the Companies Act
(Amendment) Bill, 1997 had a provision stating that the Government would
make rules for taxing gains on sale of IDRs, Section 605A introduced in the
Companies Act does not contain this requirement. In the absence of any
specific provision in the Income-Tax Act, 1961 for taxing the gain on sale of
IDRs, the general rules relating to capital gains taxation continue to apply. It
may be noted that the income by way of capital gains may be subject to a
higher rate of tax. Further, the introduction of the Direct Tax Code from next
fiscal year, i.e., April, 2011 may also alter the tax treatment of IDRs. The
IDRs are yet not exempted from long-term capital gains unlike shares, and are
taxed at the regular long-term capital gains rates, with cost indexation
benefits. Short-term capital gains tax at the rate of 15 per cent applicable for
investments in securities will not apply for IDRs instead taxation will be done
according to tax slab rates. Since IDRs are not considered to be securities,
Securities Transaction Tax shall not have to be paid. However, similar to that
of securities, holding an IDR for more than 12 months will qualify it as a
long-term investment. The issuing company will not pay dividend distribution
tax, as is being paid by Indian companies which allows the dividend to be tax-
free for the investors. Dividends on IDRs received will be taken as taxable
income in the hands of the investors.
As regards conversion of IDRs into shares, while the IT Act exempts
conversion of bonds/debentures/deposit certificates into shares under section
47(x) from an Indian tax perspective, there may need to be incorporated a
`direct' provision for the conversion of IDRs into underlying shares being tax
neutral or a scheme, similar to that notified under Section 115AC,43 specifying
the tax treatment relating to IDRs. Further, a similar provision in the tax laws
of the overseas jurisdiction may be useful in clarifying the tax implications of
such conversion in the overseas jurisdiction.
e. The RBI Circular
The Reserve Bank of India through its circular, sought to amend the Indian exchange
control regulations to :
a. enable foreign companies issue Indian Depository Receipt in India, and
b. permit Foreign Institutional Investors, their sub-accounts, and Non-Resident
Indians to invest in IDRs.
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5. CONCLUSION
The utility of Depository Receipts as an instrument for raising capital is acknowledged
worldwide and has been extensively used by companies to raise capital in overseas
jurisdictions. In the Indian context, the concept of raising capital through the Depository
Receipts route is not novel to Indian companies either. Several Indian companies viz.,
Rediff, Infosys have tapped overseas pool of capital by listing ADRs/ GDRs of their
companies on overseas stock exchanges. With the introduction of the IDR regime, not
only is there an additional avenue for foreign companies to raise capital in India, but also,
an additional flexible route for Indian investors to invest in global corporations in an easy
manner. With the ambit of eligible investors being expanded to include foreign investors
as eligible investors to subscribe to IDRs, one can expect a surge in popularity of IDRs as
a route for foreign companies reaching out to India as a destination for raising capital.
Furthermore, from the recent amendments it can be said that the Government and
regulatory authorities have been taking progressive steps to facilitate issue of IDRs by
doing away with several stringent requirements that were applicable to certain category
of investors, viz., domestic mutual funds, NRIs and FIIs from investing in IDRs and by
introducing simplified procedure for listing of IDRs. SEBI can be credited for being
prompt in aligning its regulations with the policy of the Government in respect of IDRs,
with the RBI following suit.
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BIBLIOGRAPHY
1. Primary Source
a. The Companies Act, 2013.
b. The Income Tax Act, 1961.
c. The Indian Depository Rule, 2004.
d. The Securities Contract Regulation Act, 1956.
e. The SEBI Act, 1992.
f. FEMA, 1999.
g. FERA, 1973.
2. Secondary Source
a. Desai Nishith, “The Indian Depository Receipt”, 2009.
b. Raj Mahim, “Adrs & Idrs : A Comparative Analysis”, Manupatra.
c. http://indiacorplaw.blogspot.com
d. www.manupatra.com
e. https://www.nseindia.com
f. www.indiainfoline.com
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