FCRA- CA. Sanjay Patra

THE FOREIGN CONTRIBUTION (REGULATION) ACT,2010

THE FOREIGN CONTRIBUTION (REGULATION) ACT,2010 FCRA

2010 was passed by both the houses of parliament received the assent of President on 26th September,2010. It

became law from 1st May 2011 vide S.O 909(E) Dated 29th April 2011.

SCOPE OF FCRA 

Extends to whole of India,



Every citizen of India outside India



Associate branches or subsidiaries outside India



Person

APPLICABILITY OF FCRA An

individual

HUF

An

association

Company

registered u/s 8 of Companies Act 2013

IMPORTANT DEFINITIONS Foreign

Contribution(defined below)

Foreign

company(defined below)

Foreign

Source(defined below)

Legislature Political

party

FOREIGN CONTRIBUTION 

Donation, delivery or transfer made by foreign source (either directly or through one or more persons) : a. Any article b. Any currency whether Indian or foreign c. Any security including foreign security

FOREIGN COMPANY 

Foreign company as defined as per sec 2(1) (g) of FCRA 2010, means any company or association or body of Individual incorporated outside India and includes –



A foreign company within the meaning of sec 379 of companies Act 2013.



A company which is a subsidiary of a foreign company

FOREIGN SOURCE The term foreign sources is given only an inclusive definition in FCRA

“Foreign source” includes: Foreign company  Citizen of foreign country  Government of foreign country  Any international agency of foreign Government  A trade union in any foreign country  Foreign Trust or Foreign Foundation  Society, Club, Association of Individuals formed outside India. A foreign source includes an Indian company if more than 50% of its share capital is held by persons covered under foreign source

THE SCOPE OF FOREIGN CONTRIBUTION REDEFINED Under

Section 2(h) FC means transfer, delivery or

donation of any currency, article or security.

Except

Fees or commercial receipt.

Includes interest or

for assets

any other income from FC funds

BUSINESS/CONSULTANCY INCOME OF AN NGO 

Under FCRA1976, the definition of ‘foreign contribution’ included all kinds of foreign receipts. It does not distinguish between a commercial receipt or a voluntary contribution.



FCRA 2010 excludes income from business, trade or commerce from the ambit of foreign contribution.



This clause is in conflict with section 2(15) of the Income Tax Act.

WHO CAN RECEIVE FOREIGN CONTRIBUTION A person as defined Under FCRA 2010 having a definite cultural, economic, educational, religious or social programme can receive FC after gets itself registered with central government or obtain prior permission.

TRANSACTIONS EXCLUDED FROM FOREIGN CONTRIBUTION Movement

of foreign funds in normal course of commerce and business is outside the purview of FCRA 2010 Contribution by

Indian citizen

Fee

paid by foreign delegates attending a conference / seminar Any

article gifted to a person for his personal use whose value does not exceed Rs. 25,000.

PERSONS DEBARRED FROM RECEIVING FOREIGN CONTRIBUTION 

  

  



Candidate for election Correspondent, cartoonist, editor, columnist, printer or publisher of registered news paper Judge, government servant or employee of any corporation Member of any legislature Panchayat (has been included in the definition of legislature under FCRA 2010) Political party or office bearer thereof Organization of political nature Association or company engaged in broadcasting of audio or visual news

DEBARRED PERSONS CAN RECEIVE FOLLOWINGS AS REFERRED IN SEC 4 OF FCRA 2010 Salaries

or wages received from foreign source

Receipt

towards business transaction with foreign entities

Gift

from relatives

Stipend

and scholarship

Remittance

under normal course under FEMA 1999

CAN AN ORGANISATION OF POLITICAL NATURE RECEIVE FOREIGN CONTRIBUTION

Political

nature organizations are not eligible for

registration under FCRA. Such organizations can not apply

even for prior permission as was allowed earlier. Therefore, such organisations are not eligible for receiving Foreign Contributions

DECLARATION OF AN ORGANIZATION TO BE OF A POLITICAL NATURE Having avowed

political objectives

Any

Trade Union with political goals;

Any

voluntary action group with political objectives

Students Unions,

Workers’ Unions, Youth Forums and Women’s wing of a

political party; Farmers, workers,

students, youth based on caste, community, religion,

language with political objective Habitually engages in

‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail

bharo’ in support of public causes

PROCEDURE TO NOTIFY AN ORGANIZATION TO BE OF POLITICAL NATURE The

Central Government may notify an organization as of political nature not

being a political party. An

opportunity in writing shall be provided

The

organization may respond within a period of thirty days from the date of

the notice Every

order shall be made within a period of one hundred and twenty days

from the date of issue of notice.

ORDER DECLARING AN ORGANISATION OF POLITICAL NATURE TO BE LAID BEFORE PARLIAMENT 

An order notifying an organisation as political nature become effective after it is laid before both houses of Parliament

PANCHAYAT DEFINED 

Panchayat have been defined as a “legislature “

COMMUNITY RADIO AND FCRA Community Radio is generally used to broadcast programmes on developmental, agricultural, health, educational, social welfare, community development and cultural issues  In case,it is used for broadcast of news, then the FCRA permission is needed 

RESTRICTION ON SPECULATIVE BUSINESS & SPECULATIVE ACTIVITY 

Section 8 of FCRA 2010 provides that FC funds cannot be used for speculative business.



Rule 4 prohibits investment in speculative activities.

POWER TO PROHIBIT SOURCES FROM WHICH FC CAN BE ACCEPTED The Act provides power to notify such source(s) from which foreign contribution shall be accepted with prior permission only. It implies that the Central Govt. may notify specific donors or countries from which foreign funds could not be received or shall be received with prior permission only.

FOREIGNERS ON BOARD Foreigners on Board through prior permission only under the following Category. 

Foreigner is married to Indian Citizen



Has been working in India for last 5 years



Has specialized knowledge in health in medical and health related fields.



Foreigner is the ex officio in terms of an inter-government agreement



Foreigner is an ex officio from a multilateral body which is exempted from the definition of foreign source.

CONDITIONS FOR REGISTRATION OR PRIOR PERMISSION 

Person should not be benami



Not likely to use FC for personal gains



Not found guilty for diversion / misutilization of funds



Not prosecuted or convicted for any offence



Not likely to advocate sedition / violent methods



Not violated FCRA earlier



Reasonable project for prior permission

APPLICATION FOR REGISTRATION 

Application for Registration is required to be made U/s 11 of FCRA 2010



All new registration have to be made in form FC -3



Application to be made online for registration along with a fee of Rs. 2000 /- (for prior permission along with a fee of Rs.1000/-)



All application should be made electronically followed by hard copies within 30days of the electronic submission otherwise the application will become void.

TIME LIMIT FOR PROCESSING AN APPLICATION FOR REGISTRATION 

Application has to be processed within 90 days . FCRA department shall also provide reasons for rejections.

TIME LIMIT FOR SUBMITTING REAPPLICATION 

If an application filed is invalidated then the person shall be

eligible to reapply only after 6 months from the date of cessation

of the previous application.

DOCUMENTS TO BE SUBMITTED WITH APPLICATION FOR REGISTRATION 

Hard copy of the online application



Certified copy of registration certificate



Details of activities during last three years



Copy of audited financial statement for last three years

ELIGIBILITY CRITERIA FOR PRIOR PERMISSION



Be registered as society / trust/ company



Submit commitment letter from the Donor



Submit Copy of reasonable project for which foreign contribution is proposed to be utilized

APPLICATION FOR PRIOR PERMISSION 

Application for Registration is required to be made U/s 11 of FCRA 2010



All new prior permission registration has to be made in form FC -4



All application should be made electronically followed by hard copies within 30days of the electronical submission otherwise the

application will become void.

APPLICATION FOR PRIOR PERMISSION



Application to be made online for prior permission along with a fee of Rs. 1,000/-

TIME LIMIT FOR PROCESSING AN APPLICATION FOR REGISTRATION 

Application has to be processed within 90 days. FCRA department shall also provide reasons for rejections.

Time limit for submitting reapplication 

If an application filed is invalidated then the person shall be eligible to reapply only after 6 months from the date of cessation of the previous application

No Deemed approval 

There is no provision which allows deemed approval in case of prior permission under FCRA 2010.

Utilization for specific purpose 

The FC fund received through prior permission should be utilized only for the purpose for which the prior permission

has been granted

DOCUMENTS TO BE SUBMITTED WITH APPLICATION FOR PRIOR PERMISSION 

Hard copy of the online application



Certified copy of registration certificate



Commitment letter from foreign donor specifying the amount of foreign contribution



Copy of project report for which foreign contribution is being offered.

POWER TO PROHIBIT SOURCES FROM WHICH FC CAN BE ACCEPTED 

The Act provides power to notify such source(s) from which foreign contribution shall be accepted with prior permission

only. It implies that the Central Govt. may notify specific donors or countries from which foreign funds could not be

received or shall be received with prior permission only

POWER TO MANAGE FC AFTER CANCELLATION OF CERTIFICATE 

After cancellation of registration certificate all the foreign contribution and assets thereof shall vest with such authority as may be prescribed.



The government authorities may take charge of the foreign contribution and the FC assets till the registration is restored.

FOREIGN GIFTS



Gift from Relatives exempted still to be reported in FC-1 excess of Rs. 1 lakh.



Earlier FC up to Rs. 1,000 was exempted now there is no such lower limit

BANK ACCOUNT



A person applying for prior permission or registration shall open an exclusive an FC bank account to receive the foreign contribution.



Multiple bank accounts can be opened for utilization purpose only.



The applicant may use local funds (minimum amount required to open and maintain a bank account) for opening of the exclusive FC bank account.



Inter account transfer of funds between multiple account is not permissible

REPORT BY BANK IN CASE OF RECEIPT OVER RS 1 CRORE 

The bank should report FCRA department if foreign contribution is received in excess of Rs 1 Crore during a period of 30 days.



If any foreign contribution is received without registration or prior registration.

BOOKS OF ACCOUNT Maintain separate books of Accounts 

Separate books of accounts and records shall be maintained by every person who has been granted registration or prior registration exclusively for foreign contribution received and utilized.

Display of Financial Information if receipts exceeds Rs1 crore 

It is necessary to place the summary data on receipts and utilization of the FC in public domain if the FC receipt is in excess of Rs 1 Crore in financial year

RENEWAL OF REGISTRATION 

FCRA 2010 provides for renewal of registration of NGOs in every 5 years



All existing registered NGOS have to renew their registration at the end of the period of 5 years from the date of enactment of FCRA 2010



NGOs have to apply in form FC-5 six month before the due date



An NGO fails to apply for renewal within the due date, its registration shall become invalid.

SUSPENSION OF REGISTRATION CERTIFICATE 

Section 13 of FCRA act allows the power to suspend the registration for a period up to 180 days.



During suspension the organization cannot receive any foreign funds without prior approval



The organization can utilize the existing foreign funds to the extent of 25% with the prior approval from FCRA department



Central government shall provide reasons in writing to the organization whose certificate is suspended. .



FCRA 2010 does not provide any opportunity of being heard before affecting the suspension order.

Cancellation of Registration Certificate 





Central Government may cancel the registration certificate for various reasons. No certificate shall be cancelled unless reasonable opportunity of being heard is provided.

Reapplication for registration after cancellation Once a registration certificate is cancelled, such person shall not be eligible for registration or prior permission for next three years from the date of cancellation.

REASONS FOR CANCELLATION ARE: 

Violating the Act or rules



Providing false information



Acting against public interest



Violating the terms and condition



No reasonable activity for two years

TRANSFER OF FC FUND TO REGISTERED ORGANIZATION 

Transfer of funds to another registered organization can be made without

taking prior approval. 

Such transfer is subject to the condition that such organisation has not been proceeded against under any provisions of the Act.



The recipient organization shall reflect it on FC -6 return.



Both the transferor and recipient shall be responsible for ensuring proper

utilization of FC fund and such transfer shall be reflected in form FC -6 by both.

TRANSFER OF FC FUND TO UN REGISTERED ORGANIZATION 

FCRA 2010 permissible to transfer of funds to other UN registered

organization which does not have any registration/permission under the Act. 

Such transfer can be made only with prior permission in compliance of section 7 and rule 24.



Total amount of transfer to unregistered organization shall not exceed 10% of the total FC receipt.



Rule provides that an organization may apply in Form 10 for transfer of FC

fund to unregistered organization. Such transfer could be made to multiple recipient through one prior approval.

METHODS OF ACCOUNTING



FCRA 2010 and the rules thereof do not specify any method of Accounting.



Any method of accounting may be followed but the receipt of FC fund should

be reported on Cash basis only 

The new requirement of filing Income & Expenditure account shown that

accrual basis of accounting is also permissible

PRESERVATION OF ACCOUNTING RECORDS



Rule 17 ( 7) provides that accounting statement shall be preserved for 6 years

FILING OF RETURN 

Rule 17 provide that the Annual return accompanied by Income & Expenditure,

Receipt & Payment A/c and Balance sheet shall be Submitted by 31st Dec of the following year. 

Return shall be filed in Form FC-6



Submission of Copy of bank statement certified by the Bank



Nil return is required to be filed even if there are no Transactions/ Activities.



All NGOs are required to file FC-7 if they receive Foreign contribution in Kind

AUDIT OF ACCOUNTS 

Central govt. has a power to audit any premise at any reasonable time for the purpose of auditing the prescribed books of accounts.



A Gazetted officer or an officer holding Group A post can undertake the audit under central Govt

CHANGE OF MORE THAN 50% OF BOARD MEMBERS 

Any change in the board members in excess of 50% shall be made with prior permission.



There may be change of more than 50% in the board for reasons such as death or election by voting. In such Cases the organization should inform Central Government and get retrospective approval.



Those organizations who had not taken permission even after such change has occurred should apply for permission and condonation.



The FCRA law shall apply to the board members which were mentioned at

the time of making application.

ADMINISTRATIVE EXPENSES



Administrative Expenditure should not exceed 50% of the total utilization of FC fund received in that year. If it exceeds more than 50%, then the approval of the FCRA Department is required

ADMINISTRATIVE EXPENSES INCLUDES  



   

 

Salaries, wages, travel of Board / Trustees. Expenses towards hiring and travel of personnel for management of the activities Consumables cost of accounting for and administering funds; expenses towards running and maintenance of vehicles; cost of writing and filing reports; legal and professional charges; and rent & repair of premises and other utilities: However it excludes expenditure directly towards activity

INVESTMENT ON FC FUND



Surplus FC fund may be placed in Fixed deposit with the bank



All the investments are in compliance with the section 11(5) of IT act



Investment in Speculative Activities are not permissible

INTEREST EARNED ON INVESTMENT



The interest earned on FC investment is considered as FC receipt.



Interest earned should be reported as FC receipt as subsequent recipient in the FC-6 form

Creation of Fixed Assets  Any asset purchased out of FC fund should be recorded as FC asset  FC asset will continue to remain an FC asset irrespective of time factor or closure of the project Sale of fixed assets 

Sale proceed of FC asset should be shown as foreign receipt



The sale proceed of FC asset should be deposited in designated bank account

INCOME FROM FC ASSET All income generated from all FC assets should be consider as a part of FC contribution and should be reflected in FC -6 as subsequent recipient. Some examples income from FC assets are : 

Income from FC projects



Income from FC vehicles



Income from FC machine & Equipments (Photo copier machine,

projector, Laptop etc.) 

Income from building , Training centers

CUSTODY AND MANAGEMENT OF FC & ASSET IN CASE OF CANCELLATION OF REGISTRATION 

The central government determines the manner in which the asset shall be

disposed off. 

Central Government reserve the right to utilize the fund during the cancellation period.



Central Government shall return all the assets and fund if the FC registration is restored.

DISPOSAL OF ASSETS



Any person , permitted for acceptance of foreign contribution under this act , ceases to exist or has become defunct , all the assets of above said person will be disposed off in accordance of relevant

provisions of act .



Central government in the absence of applicable act will act with regard to the nature of assets created out of foreign contribution .

SECTION 3

OFFENCE & PENALTIES & FORMS



If Foreign contribution is not available for confiscation then central Government may impose on such person a fine not exceeding 5 times of the value of Foreign contribution or 1000 Rs whichever is more. (Sec 36)



Where no separate punishment is provided then person shall be punished with imprisonment, may extend to 1 year or fine or both. ( Sec 37)

COMPOUNDING OF OFFENCES 

Any offence not being an offence punishable with imprisonment

only be compounded . 

Once an offence is compounded the same person cannot avail

the benefit of compounding if such offence is committed again within three years.

INSPECTION AND SEIZURE 

Central government may inspect any account or report

maintained by any person covered in act 

Seize such account or record if there is reasonable cause to believe with the violation of any of provision of act



Should return the seized accounts with in the maximum period of 6 months if there is no proceedings are initiated

MISCELLANEOUS 

Power to call for information or documents



Investigation powers are same as that of an officer in-charge at police station



CBI or any other agency investigating cases under the act to furnish quarterly return on progress on all cases.



No suit / other legal proceeding against any of the govt. agencies or their officers for acting in good faith in the pursuance of act.



Certain administrative powers to make rules

CONTD.. 

Procedure for laying of rules in parliament.



Power to exempt organizations from of all or any provision of this act .



Not to apply to transactions between Government of India & foreign governments.



Not to apply Government Bodies.

CONTD.. 

Certain administrative powers to make rules.



Procedure for laying of rules in parliament.



Power to exempt organizations from of all or any provision of

this act . 

Not to apply to transactions between Government of India & foreign governments.

FORMS TO BE FILED FORM FC-1

Intimation of central Government of Receipt of foreign contribution by way of gift from relative.

FORMFC-2

Application for seeking prior Permission of the Central Government to accept foreign hospitality.

FORM FC-3

Application for registration for the acceptance of foreign Contribution.

FORMFC-4

Application for prior Permission for acceptance of foreign contribution.

FORM FC-5

Application for seeking renewal of registration Certificate.

FORM FC-6

Account of Foreign Contribution for the Year.

FORM FC-7

Intimation about Foreign Contribution ( Articles ) account

FORM FC-8

Intimation about foreign Contribution account

FORMFC-9

Intimation to Central Govt of receipt of foreign contribution received by a candidate for election

FORM FC-10

Application for seeking permission for transfer of foreign contribution to other registered / unregistered persons.

( Securities)