The Foreign Exchange Management Act, 1999 (FEMA) is a regulatory framework that governs all foreign exchange transactions in India. One of the key provisions under FEMA is the Annual Return on Foreign Liabilities & Assets (FLA), which requires Indian companies to report their foreign assets and liabilities to the Reserve Bank of India (RBI) on an annual basis. Here are some frequently asked questions about the Annual Return on Foreign Liabilities & Assets (FLA):
Question 1: What is Foreign Exchange Regulation Act, 1973 (FERA)?
Foreign Exchange Regulation Act, 1973 (FERA) was replaced by the Foreign Management Act, 1999 (FEMA). FEMA was enacted by the Parliament of India and it came into force on 1st June 2000. There are a total of 49 Sections divided into 7 chapters. The reason for the replacement emerged because it was not suitable for the prevailing environment and was harsh as it contained a provision for imprisonment.
The importance of the Foreign Exchange Management Act (FEMA) regulations and their compliance becomes a major part of the company’s operations. FLA annual returns are one of the compliances that have to be met by the companies that are involved with FDI (Foreign Direct Investments) or companies who invest in foreign companies either via joint venture or wholly owned subsidiaries, also termed as Overseas Direct Investment (ODI). FLA annual return should cover all the foreign investments made by the company and/or to the company and it must be directly submitted by the company to the Reserve Bank of India.
Question 2: What is the Meaning of Foreign Liabilities and Assets Annual Return?
Foreign Liabilities and Assets (FLA) is a reporting system established under the Foreign Exchange Management Act (FEMA), 1999 in India. The system requires Indian companies that have received foreign direct investment (FDI) or made overseas investments to report their foreign liabilities and assets on an annual basis.
Question 3: What is the method for Filing of FLA return?
The prescribed method of filing of FLA annual return is via an excel sheet. It is required to be filed by all the companies falling under the criteria already mentioned. The filing of the FLA annual return has to be done before the 15 of July of the respective year and must include data of FDI or ODI received or made by the company respectively for any previous year(s) and the current year. The form is to be mailed by any authorized member of the company from their email ID to the official email ID of the RBI i.e., https://flair.rbi.org.in/fla/faces/pages/login.xhtml.
The members of the company authorized to file the FLA return are Company Secretary, Chief Financial Officer, and Directors. The details filed must comprise the financial details as well as other required details in accordance with the company’s audited accounts. In case the company does not have its accounts audited before 15 July, the company is to file the FLA return according to the unaudited accounts and have their accounts audited thereafter.
Question 4: What is the Due Date for Filing FLA Return?
FLA return is mandatory under the FEMA Act 1999, and companies are required to submit the same based on audited/ unaudited accounts by 15 July every year. However, for submitting Form FLA for the FY 2019-20, the due date has been extended to 31 July 2020.
Question 5: What will be the consequences in case FLA Return is not filed by 15th July, as our accounts are not audited as yet, and we do not wish to file it with unaudited figures?
Annual return on Foreign Liabilities and Assets has been notified under FEMA 1999 and it is required to be submitted by all the India-resident companies which have received FDI and/ or made overseas investments in any of the previous year(s), including the current year by July 15 every year. Non-filing of the return before the due date will be treated as a violation of FEMA and a penalty clause may be invoked for violation of FEMA (A.P. (DIR Series) Circular No. 29, dated February 02, 2017)
Question 6: What are the important things to remember in context with FLA Returns?
Due Date: FLA is required to be submitted by July 15 every year. In case FLA is filed on the basis of provisional accounts. In case there is a variation in provisional and audited financials, a revised FLA is to be filed based on audited accounts before September’s end.
Non-Compliance: Non-filing of the return before the due date will be treated as a violation of FEMA and a penalty clause may be invoked for violation of FEMA. The penalty as prescribed under the FEMA is “THRICE” the sum involved in contravention or Rs. 2 lakhs if the offense is non-quantifiable and if the contravention is continuing every day, then Rs. Five Thousand for every day after the first day during which the contravention continues.
Compounding for the delay in the filing: The powers to compound the contraventions have been delegated to all Regional Offices of RBI (except Kochi and Panaji) without any limit on the amount of contravention.
Question 7: Are there any exemptions from filing the FLA?
Where the Indian company does not have any outstanding investment in respect of inward and outward FDI as of the end-March of the reporting year. If a company has received only share application money and does not have any foreign direct investment or overseas direct investment outstanding as of the end-March of the reporting year. Companies that have issued the shares to non-residents only on a non-repatriable basis are not required to submit the FLA Return.
Question 8: What is the Penalty for non-filing of return?
Non-filing of the return before the due date will be treated as a violation of FEMA and a penalty clause may be invoked for violation of FEMA. The penalties for violating the law or filing false information under the FEMA Act is 300 percent of the amount involved in the violation or Rs. 2 Lakh if the offense is non-quantifiable: If the violation continues every day, the penalty is Rs. 5000 for each day after the first day during which violation continues; and the power to compound the violation has been delegated to a regional officer of RBI.
Question 9: If the old/new company fails to file the FLA form before the due date; can the company submit the FLA form?
Yes, the company can file the FLA return after the due date by taking approval from RBI.
Question 10: If an old/new company wants to file the previous year’s FLA form; can the company file the previous year’s FLA form?
Yes, the company can file the previous year’s FLA form (through the online FLA portal only) by taking approval from RBI. For taking approval, they need to send mail to surveyfla@rbi.org.in.
Question 11: If an old/new company wants to delete the previous version of the FLA form or modify can the company delete/modify the FLA return?
Yes, the company can delete/modify the FLA return after taking approval from RBI (RBI will provide the due date on the FLA portal).
Question 12: Who is required to file the FLA?
All Indian companies that have received foreign direct investment (FDI) or made overseas investments during the previous financial year are required to file the FLA.
Conclusion
FLA annual returns are one of the compliances that have to be met by the companies that are involved with FDI (Foreign Direct Investments) or companies who invest in foreign companies either via joint venture or wholly owned subsidiaries, also termed as Overseas Direct Investment (ODI). FLA annual return should cover all the foreign investments made by the company and/or to the company and it must be directly submitted by the company to the Reserve Bank of India.
