13. NJA PRESENTATION.ppt to understand for students

for better understanding students

1. A PRESENTATION
ON
CROSS BORDER TRANSACTION
-EXCHANGE CONTROL
AND
THE LAW
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2. CROSS BORDER TRANSACTIONS
Cross-border operations are transactions between
residents of different countries.
Major Types Of Cross Border Transactions
Cross-Border Financing and Investment
Buying or Selling Products & Services
Combined research/ shared services
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3. CROSS BORDER TRANSACTIONS
I. Cross-Border Financing and Investment
This term refers to any financing arrangement that crosses
national boundaries. Cross border financing could include
 cross border loans,
 letters of credit or bankers acceptances,
 Bank guarantees, depositary receipts etc.
 Investments including FDIs(Foreign Direct
Investments),FPIs(Foreign Portfolio
Investments),FIIs(Foreign Institutional Investments)
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4. CROSS BORDER TRANSACTIONS
2. Buying or Selling Products & Services
This term refers to any buying or selling activities of products
or services including cost sharing by Multinational
companies
Both may have different features with respect to
infrastructure,
permanent establishment,
producing product or services outside the one’s jurisdictional
area,
trading across the borders,
bridging between local resources and outside supply etc etc.
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5. CROSS BORDER TRANSACTIONS
3. Combined research/ shared services
B.P.O.As a result of globalization, organizations today are
required to make their non-core operations a strategic tool for
enhancing their core capabilities, improve processes, lower
costs, drive revenue, pledge quality and strengthen customer
relationships with Business Outsourcing Solutions.
. Groups of companies are introducing joint research
programs for entire industry as one cartel or chamber of
commerce or group of commerce.

This type of arrangements of shared service centers are also
concern matter in international trade if those shared service
centers providing services across the borders scattered in
different locations.

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6. EXCHANGECONTROL
Exchange Control is a governmental restriction on the
movement of currency between countries in private
transactions in foreign exchange (foreign money or claims on
foreign money).
The transactions include currency, bank transactions, book
transfers, electronic payments or any other direct or indirect
financial benefits provided by persons who are residents or
citizens of one country to persons who are residents or
citizens of another country.
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7. LAWS FOR EXCHANGE CONTROL
Brief Background:
The Defence of India Act 1939 first introduced exchange control
on a temporary basis.
Subsequently, the Foreign Exchange Regulation Act was
enacted in 1947 to be replaced by the Foreign Exchange
Regulation Act (FERA),1973.
 Due to Economic liberalization in 1991, foreign investments
were sought to be encouraged in many sectors. In the changed
environment, the provisions of FERA were found restrictive in
nature . herefore FERA was reviewed by the Tarapore
committee on Capital Account Convertibility, constituted by the
Reserve Bank of India.
 Consequently FERA was repealed and replaced byForeign
Exchange Management Act (FEMA),1999,w.e.f. 1
st
June,2000.
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8. LAWS FOR EXCHANGE CONTROL
TODAY WE HAVE A PLETHORA OF LAWS GOVERNING
EXCHANGE CONTROL IN CROSS BORDER
TRANSACTIONS, WHICH INCLUDE:
F E M A-FOREIGN EXCHANGE MANAGEMENT ACT 1999
F C R A-Foreign Contribution Regulatory Act 2010
& FOREIGN CONTRIBUTION (REGULATION ) RULES2011
ASMODIFIEDBYFOREIGN CONTRIBUTION (REGULATION )
AMENDMENTRULES2015.
P M L A-Prevention of Money Laundering Act, 2002
&
Prevention of MoneYLaunderinG(Amendment)
Act 2012
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9. LAWS FOR EXCHANGE CONTROL
OBJECTIVES 0F THE THREE LAWS
THE OLDEST OF THE THREE LAWS IS FEMA,1999,WHICH
CONTROLS THE PROVISIONS RELATING TO FOREIGN
EXCHANGE,FACILITATES EXTERNAL TRADE AND PAYMENTS
AND MAINTAINS BALANCE IN FOREIGN EXCHANGE MARKET IN
INDIA.
 THE SECOND LAW IS PMLA,BROUGHT IN THE YEAR 2002,TO
PREVENT MONEY LAUNDERING AND TO PROVIDE FOR
CONSFICATION OF PROPERTY DERIVED FROM OR INVOLVED
IN,MONEY LAUNDERING AND FOR MATTERS CONNECTED
THEREWITH.IT HAS BEEN SUBSEQUENTLY AMENDED IN 2012.
 FCRAIS THE THIRD AND MOST RECENT LAW,BROUGHT IN
2010,WITH THE OBJECTIVE OF REGULATING ACCEPTANCE AND
UTILISATION OF FOREIGN CONTRIBUTION OR FOREIGN
HOSPITALITY BY SPECIFIED PERSONS AND TO PROHIBIT
ACCEPTANCE AND UTILISATION OF FOREIGN CONTRIBUTION OR
FOREIGN HOSPITALITY FOR ANY ACTIVITIES DETRIMENTAL TO THE
NATIONAL INTEREST.
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10. FEMA AND FERA –A comparison
There are some similarities in both the laws, e.g.
The regulatory bodies are the Union Government and the
Reserve Bank of India.
The Directorate of Enforcement continues to be the
agency for enforcement of the provisions of the Act,
including coercive measures such as search and seizure
action
Wide applicability of the law i.e. to the whole of India as
well as to certain extra-territorial jurisdictions
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11. FEMA AND FERA –A comparison
However, there are major differences in the two acts. Some of the
differences are
FEMA
1. No. of Sections: Has only 49
sections and is much simpler.
2. Punishment: Any offence is
civil offence punishable
with monetary penalty and
imprisonment is only when
penalty amount is not paid
3. Penalty: u/s 13 is limited to
three times the amount
involved in contravention
FERA
Had 81 sections and was far
more complicated.
Any offence was criminal
offencepunishable as per
Cr.P.C. with imprisonment
u/s 50 penalty was almost five
times the amount involved in
contravention
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12. FEMA AND FERA –A comparison
Continued …..major differences
FEMA
4. APPELLATE PROCEDURE:
Adjudication and appeal:Sec.16 to
Sec.35.
High Court
Appellate Tribunal for Foreign
Exchange
Special Director (appeals) or
Adjudicating authorities
FERA
Adjudication and appeal:
Sec. 51 to Sec. 54
High Court
Foreign Exchange Regulation
Appellate Board
Adjudicating authorities
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13. FEMA--THE FOREIGN EXCHANGE
MANAGEMENT ACT, 1999
Applies to the whole of India.
As well as
to all branches, offices and agencies outside India owned
or controlled by a person resident in India and also to any
contravention there under committed outside India by any
person to whom this Act applies.
It came into force w.e.f.1
st
June 2000.
Provided that different dates may be appointed for different
provisions of this Act and any reference in any such
provision to the commencement of this Act shall be
construed as a reference to the coming into force of that
provision.
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14. OBJECTIVE OF FEMA
According to the Act, the objective is-
To consolidate and amend the law
relating to foreign exchange
with the objective of facilitating
external trade and payments
and for promoting the orderly
development and maintenance of
foreign exchange market in India
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15. The OverallStructureof FEMA
Supreme
legislation
7 CHAPTERS
49 SECTIONS
Delegated
legislation By
Ministry
U/S 46 of FEMA
5 SETS OF
RULES
Subordinate
legislation
By RBI
U/S 47
Of FEMA
23 SETS OF
REGULATIONS
Master Circular
issued by RBI
every year
FDI POLICY
IISSUED BY
DIPPS
PERIODICALLY
Notifications
and circulars
issued by RBI
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16. The Legislative Structureof FEMA 1999
The FEMA,1999. contains legal provisions in 7
chapters and 49 sections as detailed below
Chapter I Preliminary (Sec.1& 2)
Chapter II Regulation And Management Of
Foreign Exchange (Sec.3-9)
Chapter III Authorized Person (Sec.10-12)
Chapter IV Contraventions and Penalties (Sec. 13-15)
Chapter V Adjudication and Appeal (Sec.16-35)
Chapter VI Directorate of Enforcement. (Sec 36-38)
Chapter VII Miscellaneous (Sec.39-49)
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17. The directorate of enforcement
Chapter VI (Sec 36-38) of the FEMA relates to the
establishment and powers of the Directorate of Enforcement.
The Directorate enforces two laws;
FEMA, a Civil Law having quasi judicial powers, for
investigating suspected contraventions of the Exchange
Control Laws and Regulations with the powers to impose
penalties on those adjudged guilty
and
PMLA, a Criminal Law, whereby the Officers are empowered
to conduct enquiries to locate, provisionally
attach/confiscate assets derived from acts of Schedules
Offences besides arresting and prosecuting the Money
Launderers.

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18. Some important Definitions in fema contd.
"current account transaction" means a transaction other than a
capital account transaction and without prejudice to the generality
of the foregoing such transaction includes –
(i) payments due in connection with foreign trade, other current
business, services, and short-term banking and credit facilities in
the ordinary course of business,
(ii) payments due as interest on loans and as net income from
investments,
(iii) remittances for living expenses of parents, spouse and children
residing abroad, and
(iv) expenses in connection with foreign travel, education and
medical care of parents, spouse and children;
"capital account transaction" means a transaction which alters the
assets or liabilities, including contingent liabilities, outside
India of persons resident in India or assets or liabilities in India of
persons resident outside India, and includes transactions referred
to in sub-section (3) of section 6;
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19. Some important Definitions in fema contd.
"currency" includes all currency notes, postal notes, postal
orders, money orders, cheques, drafts, travelers cheques, letters of
credit, bills of exchange and promissory notes, credit cards or such
other similar instruments, as may be notified by the Reserve Bank;
"foreign exchange" means foreign currency and includes,-
(i) deposits, credits and balances payable in any foreign currency,
(ii) drafts, travellers cheques, letters of credit or bills of exchange,
expressed or drawn in Indian currency but payable in any foreign
currency,
(iii) drafts, travellers cheques, letters of credit or bills of exchange
drawn by banks, institutions or persons outside India, but payable
in Indian currency;
"person" includes –an individual, a Hindu undivided family, a
company, a firm, an association of persons or a body of
individuals, whether incorporated or not, every artificial juridical
person, not falling within any of the preceding sub-clauses
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20. FCRA -----Foreign Contribution Regulatory Act 2010 &
FOREIGN CONTRIBUTION (REGULATION ) RULES2011
ASMODIFIEDBYFOREIGN CONTRIBUTION (REGULATION ) AMENDMENTRULES
2015
The original Foreign Contribution Regulation Act 1976 was
subsequently replaced by Foreign Contribution Regulation Act
2010.
The objectives of the Act are mainly to exercise control over
1). Acceptance of Foreign Hospitality by dignitaries and high officials
from the Govt., including prohibition on election candidates
,registered newspaper personnel ,political parties ,MPs ,MLAs,
Judges, Govt. servants etc
2) Utilization of foreign contribution in India.
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FCRA continued.
Foreign Contribution means contribution by any foreign
source.
Case Law: Association for Democratic Reforms v. UOI
(2014),Del.HC DB).Two companies incorporated in India had
given donations to political parties. Majority shares of these
companies were held by a company incorporated outside India.
Held that the donations were received from foreign sources.
Foreign contributions include articles, currency, hospitality,and
securities as specified by the Govt. from time to time
FCRA is applicable to the whole of India and also to citizens of
India outside India and associates/branches and subsidiaries
outside India of companies or bodies registered or incorporated
in India.
FCRA is administered by the Ministry of Home Affairs, Foreign
Division.

22. FCRA contd.
FCRA to override the provisions of FEMA or other general acts
since it is a special act.Thus even if a transaction is
permissible under FEMA,the restrictions of FCRA shall apply.
Exemptions
---Contributions by U.N. and its specified agencies, World
Bank, IMF, or other agencies as notified by the Govt. are
exempt.
-----Exemptions from FCRA restrictions are specified in Sec.3
and Sec.4,and includes gifts from relatives ,scholarships ,
remittances for salaries and wages, payments in the course of
normal trade and commerce ,etc, subject to prohibitions
notified by the Govt. u/s 10.
Recent Developments
Recently the NGOs in India have had to face the restrictions
on foreign contributions under this Act. In June 2015, the
MHA cancelled the licenses of 15,000 NGOs for violation of
FCRA.

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23. Prevention of Money Laundering Act, 2002 (PMLA)
&
Prevention of Money Laundering (Amendment)Act, 2012
 There is interesting history behind the word.”laundering”
Al Capone, the notorious mafia in USA, obtained lot of money
from criminal activities. He invested that money into
establishing laundries all over USA. Since laundry business is
mainly cash business, he was able to convert his cash into
legitimate money.
 The term Money Laundering is used for the disguising or
concealing of illicit income in order to make it appear
legitimate.
 Money Laundering is being employed by launderers
worldwide to conceal criminal activity associated with it such
as drugs / arms trafficking, terrorism and extortion.
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24. Prevention of Money Laundering Act, 2002 (PMLA)
&
Prevention of Money Laundering (Amendment)Act, 2012
India has criminalised money laundering under the
Prevention of Money Laundering Act, 2002 (PMLA), as
amended periodically.
The latest amendment to The Prevention of Money
Laundering Act 2002 was assented to by the President on 3rd
January 2013 and has been notified as The Prevention of
Money Laundering(Amendment) Act 2012.
The Financial Action Task Force on Money Laundering
(FATF), an intergovernmental body, was established by the G-
7 Summit in Paris in 1989 and was responsible for setting
global standards on anti-money laundering and combating
financing of terrorism . India is also a member.
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25. Contd.Prevention of Money Laundering Act, 2002 (PMLA)
Offences have cross border implications if
i). Offence is committed outside India and the proceeds of
such conduct or part thereof are remitted to India. Or
ii) Offence is committed in India and proceeds of crime are
transferred outside India.
It covers offences specified in Parts A,B,or C of Schedule to
the Act, e.g, Sec.121 & Sec. 121A of I.P.C.-waging or
attempting or abetting conspiring to wage war against Govt.
of India; Narcotics Drugs and Psychotropic Substances Act.
& If amount involved is more than Rs.30 lacs then,offences of
Murder, culpable homicide, causing hurt to extort property,
kidnapping for ransom, counterfeiting, forgery.Offences under
Wild Life Protection Act, Arms Act, Prevention of Immoral
Trafficking Act, Prevention of Corruption Act.
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26. CASE LAW: HASAN ALI KHAN

 Bombay High Court
Hasan Ali Khan vs Union Of India on 12 August, 2011
 Criminal Appellate Jurisdiction
Criminal Bail Application No.994 Of 2011
Supreme Court of India
Union of India vs Hasan Ali Khan And Anr. On 30
th
September ,2011
Criminal Appellate Jurisdiction
Criminal Appeal No.1883 of 2011
(arising out of the judgement and final order of the Bombay High
Court dated 12
th
August 2011)


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27. CASE LAW: HASAN ALI KHAN
I. Income Tax Search in 2007 found cash, jewellry,and incriminating
documents regarding transactions of huge proportions in foreign banks ,and
three passports.---Documents were forwarded to the Enforcement
Directorate.
II.Income tax assessments of the accused was to the tune of
Rs.110,412,68,85,303 for Assessment years 2001 to 2008
III.The enforcement Directorate during investigation found that the accused had
violated the FEMA provisions and Sec.3 and Sec.4 of the PMLA to the tune
of US$ 8000453000, (INR. 36,000 approx.) in his account with the Union
Bank Of Switzerland,AG,Zurich, Switzerland.
IV.He was arrested in 2011 and applied for bail which was granted by the
Bombay High Court but subsequnetlythe S.C. cancelled the bail.
The laws mentioned in this case are:-
Income Tax Act
FEMA
Section2(1) u, Section 3 , and Section 4 of the Prevention of Money
laundering Act(PMLA).
(SUMMARY OF THE FACTS AND THE JUDGEMENT OF THE Bombay H.C
ARE SEPERATELY CIRCULATED).
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28. RECENT INCIDENTS ABOUT VIOLATIONS of FEMA, fcra and
pmla
THE HUGE PENDENCY OF FEMA AND PMLA
CASES CAME UP IN THE PARLIAMENT ON 18
TH
DECEMBER 2015.
IT WAS STATED BY THE MINISTER OF STATE
,FINANCE,THAT MORE THAN 6000CASES WERE
PENDING OUT OF WHICH 4,787 WERE FEMA
CASES AND 1319 CASES WERE PMLA CASES
INVOLVING RS.10,309 CRORES.
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29. RECENT INCIDENTS ABOUT VIOLATIONS of FEMA, fcra and
pmla
FCRA IN THE NEWS
4
TH
SEPT.2015: GOVT. CANCELS N.G.O.GREENPEACE INDIA’S FCRA
LISCENCE THIS MEANS THE NGO WILL NOT BE ABLE TO RECEIVE
FOREIGN DONATIONS.
SOCIAL ACTIVIST TEESTA SETALVAD.VIOLATION OF FCRA IN
RECEIVING DONATIONS FROM FORD FOUNDATION. CBI
INTERROGATION IS ONGOING.
28
TH
DEC.2015.CHANGES IN FCRA ENABLES GOVT. TORECEIVE
ACCOUNT DETAILS OF NGOS ONLINE. NGOS WILL BE REQUIRED TO
PUBLISH DETAILS OF FOREIGN CONTRIBUTIONS ON SPECIFIED
WEBSITES.
P M L A IN THE NEWS -----BANK OF BARODA CASE :--ALLEGED
OVERSEAS TRANSFER OF RS 6,172 CRORES TO HONG KONG AND
DUBAI ON THE PRETEXT OF ADVANCE PAYMENT FOR IMPORT ORDERS.
ED AND CBI HAVE ARRESTED SOME BOB OFFICIALS.
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30. THE BLACK MONEY ACT -EXEMPT
THE BLACK MONEY (UNDISCLOSED FOREIGN INCOME
AND ASSETS) AND IMPOSITION OF TAX ACT, 2015
NO. 22 OF 2015 [26th May, 2015.]
An Act to make provisions to deal with the problem of the Black money
that is undisclosed foreign income and assets, the procedure for
dealing with such income and assets and to provide for imposition of
tax on any undisclosed foreign income and asset held outside India and
for matters connected therewith or incidental thereto.
THE RULES FRAMED UNDER THE NEW LAW PROVIDE FOR
EXEMPTION FROM PROSECUTION UNDER FEMA TO THOSE
DISCLOSING THEIR ASSETS .
RBI on 30
TH
SEPTEMBER said no action under FEMA will be taken against
declarations under one-time black money compliance window, which ends on
Wednesday.
In a communication to banks, the Reserve Bank said: "No proceedings shall lie
under the Foreign Exchange Management Act, 1999 (FEMA) against the
declarant with respect to an asset held abroad for which taxes and penalties
under the provisions of Black Money Act have been paid." RBI has already
notified the Foreign Exchange Management Regulations, 2015, in this regard.
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31. THE FATCA-Foreign Account Tax Compliance Act
(FATCA) OF U.S.A.
On July 9, 2015 U.S and India Signed a Tax information sharing
agreement. The agreement is designed to increase transparency
between the two nations on the investment and tax matters. The
agreement takes effect immediately and underscores growing
international co operation to end tax evasion in both the
countries.
On 28
th
August 2015 RBI has issued directions on reporting
requirement under Foreign Account Tax Compliance Act
(FATCA) and Common Reporting Standards (CRS) to all Banks
and NBFIs(Non Banking Financial Institutions)
The CBDT has also made necessary amendments to the Act and
the rules to implement FATCA.
It is more of an information exchange law which shall have
consequential implications for exchange control.
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32. THANK YOU
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