Author: Nikhil Rajpurohit
Depositories came into being in India only after the enactment of Depositories Act 1996. The act paved the way for establishment of NSDL (National Securities Depositories Limited), the first depository in India. NSE joined hands with leading financial institutions to establish the NSDL, with the objective of enhancing the efficiency in settlement systems and also to reduce the menace of fake, forged and stolen securities. The second depository in the country, CDSL (Central Depositories of Securities Limited), promoted by BSE and a few commercial banks, was granted certificate of commencement of business in February 1999. This ushered in an era of dematerialized trading and settlement of securities. SEBI has made dematerialized settlement mandatory in an ever-increasing number of securities in a phased manner, thus bringing about an increase in the proportion of shares delivered in dematerialized form. Today, more than 99% of settlement of securities takes place in dematerialized form. In the depository system, securities are held in depository accounts which are more or less similar to holding funds in bank accounts. Transfer of ownership of securities is done through simple account transfers ((Vinay K. Srivastava, Depositories in Indian Capital Market, Advances In Management Vol. 4 (5), 6, May [2011])).
This method does away with all the risks and hassles normally associated with paperwork. Consequently, the cost of transacting in a depository environment is considerably lower as compared to transacting in certificates. The introduction of depository system has brought a revolutionary change in the way the market operates. Trading for investors, both institutional and individuals has become very convenient and hassle free. The capital market reforms have also made the market lucrative for public companies to raise capital. But still a lot needs to be done if we want our markets to become efficient and investor friendly ((Srivastava, Id)).
Depository Receipt
A depositary receipt (DR) is a type of negotiable (transferable) financial security that is traded on a local stock exchange but represents a security, usually in the form of equity, which is issued by a foreign publicly listed company. The DR, which is a physical certificate, allows investors to hold shares in equity of other countries. One of the most common types of DRs is the American depositary receipt (ADR), which has been offering companies, investors and traders global investment opportunities since the 1920s. Since then, DRs have spread to other parts of the globe in the form of global depositary receipts (GDRs) (the other most common type of DR), European DRs and international DRs. ADRs are typically traded on a U.S. national stock exchange, such as the New York Stock Exchange (NYSE) or the American Stock Exchange, while GDRs are commonly listed on European stock exchanges such as the London Stock Exchange. Both ADRs and GDRs are usually denominated in U.S. dollars, but can also be denominated in Euros ((Reem Heakal, An Introduction To Depositary Receipts, INVESTOPEDIA, (July 24 2011) available at http://www.investopedia.com/articles/03/091003.asp)).
How does it work?
The DR is created when a foreign company wishes to list its already publicly traded shares or debt securities on a foreign stock exchange. Before it can be listed to a particular stock exchange, the company in question will first have to meet certain requirements put forth by the exchange. Initial public offerings, however, can also issue a DR. DRs can be traded publicly or over-the-counter ((Heakel, Id)).
The Benefits of Depositary Receipts:
The DR functions as a means to increase global trade, which in turn can help increase not only volumes on local and foreign markets but also the exchange of information, technology, regulatory procedures as well as market transparency. Thus, instead of being faced with impediments to foreign investment, as is often the case in many emerging markets, the DR investor and company can both benefit from investment abroad ((Heakel, Id)).
For the Company:
A company may opt to issue a DR to obtain greater exposure and raise capital in the world market. Issuing DRs has the added benefit of increasing the share’s liquidity while boosting the company’s prestige on its local market (“the company is traded internationally”). Depositary receipts encourage an international shareholder base, and provide expatriates living abroad with an easier opportunity to invest in their home countries. Moreover, in many countries, especially those with emerging markets, obstacles often prevent foreign investors from entering the local market. By issuing a DR, a company can still encourage investment from abroad without having to worry about barriers to entry that a foreign investor might face ((Heakel, supra note 3)).
For the Investor:
Buying into a DR immediately turns an investors’ portfolio into a global one. Investors gain the benefits of diversification while trading in their own market under familiar settlement and clearance conditions. More importantly, DR investors will be able to reap the benefits of these usually higher risk, higher return equities, without having to endure the added risks of going directly into foreign markets, which may pose lack of transparency or instability resulting from changing regulatory procedures. It is important to remember that an investor will still bear some foreign-exchange risk, stemming from uncertainties in emerging economies and societies. On the other hand, the investor can also benefit from competitive rates the U.S. dollar and euro have to most foreign currencies ((Heakel, Id)).
Types of DRs:
– ADR (American Depository Receipt),
– GDR (Global Depository Receipt),
– IDR (Indian Depository Receipt),
– LDR (Luxembourg Depository Receipt),
– EDR (European Depository Receipt).
In United Kingdom, CREST Depositary Interests (CDIs) function similarly, but not identically to depositary receipts ((Depository Receipt, WIKIPEDIA, http://en.wikipedia.org/wiki/Depositary_receipt, [last updated November 30, 2012])).
An overview of ADR and GDR:
An integration of world financial market has been the distinct feature of the recent global development. The last two decades has witnessed acceleration in financial globalization represented by an increase in cross-country foreign assets. Technological progress and the liberalization of capital flows have fostered considerable competition among global stock exchanges for equity listings and trades. Cross-border listings have gained in importance over the past few decades as many companies have become more international in their orientation. The reason why so many firms recently list their shares for trading on more than one stock exchange is a segmentation of capital markets. It is usually expected that a Depository Receipts (DR) listing improves liquidity of the company’s stock, as the potential investors’ base is extended, the visibility of the company both in DR and local markets is enhanced, and cross border trading is enabled. International listings provide firms with improved access to global capital, reduced risk exposure, enhanced visibility, liquidity and investor base ((Naliniprava Tripathy, Indian Stock Market Reaction To International Cross-Listing: Evidence From Depository Receipts, China-USA Business Review October 2010, Volume 9, 1, No.10)).
If the depository receipt is traded in the United States of America (USA), it is called an American Depository Receipt, or an ADR. If the depository receipt is traded in a country other than USA, it is called a Global Depository Receipt, or a GDR. It represents a certain number of underlying equity share. ADRs and GDRs are not for investors in India—They can invest directly in the shares of various Indian companies. But the ADRs and GDRs are an excellent means of investment for NRIs and foreign nationals wanting to invest in India. By buying these, they can invest directly in Indian companies without going through the hassle of understanding the rules and working of the Indian financial market—since ADRs and GDRs are traded like any other stock. NRIs and foreigners can buy these using their regular equity trading accounts. Though the GDR is quoted and traded in dollar terms, the underlying equity shares are denominated in rupees. GDR is issued through the under writers, who arrange to sell the GDR to the investors. After the final issue, a depository is chosen, and the company registers the equivalent equity shares of GDR issue in the name of this depository. Though the shares are registered in the name of ythis depository, the physical possession of the shares is with the local custodian, who acts as the trustee of the depository. The depository subsequently issues the GDR to the under-writer who distributes these negotiable instruments to the investors. So it is evident that the Indian capital market has remarkably changed through the issue of GDRs and able to mobilize considerable foreign investment. The capital market has become very active, and Financial Institutions (FIs), FIIs, Asset management companies have shown increasing interest in investing in India. With a view to achieve the goal, Euro-issue is taken as one of the viable alternatives. GDR is envisaged as an innovative and easily accessible route to reach the international capital market by Indian corporate sector. The response of foreign investment flows to reforms was to a great extent encouraging. It clearly shows that the sizes of euro-issues have grown tremendously just after new economy policy measures announced. A GDR is a dollar denominated instrument listed and traded on foreign stock exchanges like NYSE (New York Stock Exchange) or NASDAQ (National Association of Securities Dealers Automated Quotation) both. The Reliance Industries Ltd, in May 1992, made the first GDR issue of $150 million. The first Indian GDR issues made by Reliance Industries and Grasim Industries were at a premium. There are 22 ADR issues from India between 2004 and 2009 ((Tripathy, supra note. 9, at 3-4)). Since ADRs are traded in the U.S. market they have been considered as an alternative to such cross-border investments while ensuring a higher diversification benefits ((Kabir, M. Humayun; Maroney, Neal; and Hassan, M. Kabir, International Diversification with American Depository Receipts (ADRs), (2005), Department of Economics and Finance Working Papers, 1991-2006. Paper 38, 5, available at http://scholarworks.uno.edu/econ_wp/38)).
Conversion:
GDRs can be converted into ADRs by existing GDRs and depositing the underlying equity shares with the ADR depository in exchange for ADRs. The company has to comply has to comply with the SEC (Securities and Exchange Commission of U.S.) requirements to materialise this exchange offer process. However, the company does not get any funds from this conversion. The trend is towards the conversion of GDRs into ADRs as ADRs are more liquid and cover a wider market ((Bharati V. Pathak, Indian Financial System: Markets, Institutions and Services 153 [2nd ed. 2010])).
Genesis of Depository Receipts – Indian Experience:
Starting with the maiden issue of the Reliance Industries in May 1992, around 81- odd Indian companies have so far tapped the global market with a cumulative mobilization of Rs 37,417.35 crore by the end of 2001-02 through 115 issues. Indeed, India has the distinction of issuing the maximum number of DRs among the emerging economies. The genesis of Indian multinational corporations (MNCs) with not only international operations, but also a global ownership is a logical fallout of this process. While bunching of DR issues took place in the early 1990s possibly in view of the pent-up overseas demand for Indian papers, it seemed to have been primarily motivated by the existing costly procedure of floatation in the domestic market. Initially GDR was the preferred mode with the majority of listings in the Luxembourg or the London Stock Exchange in view of their less stringent disclosure requirements vis-a-vis the requirements under the US GAAP (Generally Accepted Accounting Principle). Besides, a majority of the Indian GDRs were issued pursuant to the US Rule 144A and/or Regulation S of the Securities Exchange Commission, which enabled their trading in the US market too mainly through the PORTAL system. Nevertheless, A DR has since emerged as the star attraction thanks to its higher global visibility, particularly for the new-economy stocks, with nine issues listed in NYSE and three issues in Nasdaq so far. While the ownership pattern of Indian GDR/ADR is not clear, both individual and foreign ownerships were in general found to be higher in London than in the US as per the Paris-based World Federation of Exchanges (FIBV) Survey (1999). Initially, companies seeking to float DRs were required to obtain prior permission from the department of economic affairs, ministry of finance, the government of India (GoI). To be eligible, companies should have a consistent track record of good performance for a minimum period of three years. The infrastructure companies were exempted from the latter requirement in June 1996. The restrictions on number of DR issues were also removed in June 1996. The Euro issue proceeds were subject to a number of end-use restrictions modified from time to time before their withdrawal in May 1998. However, such proceeds were not to be invested in stock market and real estate. In December 1999 Indian software companies, in March 2000 other knowledge-based companies, and in April 2001 all types of companies were permitted to undertake overseas business acquisition through ADR/GDR stock swap. In January 2000, companies were made free to access the GDR/ADR market through an automatic route operated by the RBI, without the prior approval of the GoI or the track record condition ((Sanjay K. Hansda and Partha Ray, Stock Market Integration and Dually Listed Stocks: Indian ADR and Domestic Stock Prices, Vol. 38 Economic and Political Weekly, No. 8, Money, Banking and Finance (Feb. 22-28, 2003), 742-743)).
In March 2001, the government allowed two-way fungibility for Indian GDRs/ADRs by which converted local shares should be reconverted into GDRs/ADRs subject to sectoral caps. With this, the reverse fungibility of ADRs and GDRs has gathered momentum. With the reconversions, there was no headroom in case of the ICICI bank’s counter in September 2002. Headroom denotes the number of domestic shares which are available for reconversion into ADRs or GDRs ((Pathak, supra note 12, at 155)). The Private non-financial companies mobilised Rs 11,352 crore from the international markets during 2005-06 which was 238.7 per cent higher than the previous year. Out of these, Rs 9779 crore was mobilised though GDRs, Rs 1,573 crore through ADRs and Rs 6 crore through ECCBs ((Pathak, Id., at 158)).
Indian Companies prefer ADRs:
ADRs are accessible to only good companies with high transparency and good governance practices which also benefit the local investor; this gets reflected in a higher P/E ratio. Companies are attracted towards raising ADRs as they are free to decide the deployment of funds either in the US or in India. Companies can also make their presence felt in the global arena which would result in increased liquidity of the company’s stock. This would also further broaden the mergers and amalgamation financing capabilities of the company. Moreover, an ADR issue creates a currency for issue of dollar-denominated stock option to employees, thereby enabling the company to hire and retain the best human resources ((Pathak, Id.)).
What is an Indian Depository Receipt?
According to Companies (Issue of Indian Depository Receipts) Rules, 2004, 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. Just as Indian companies tap foreign capital markets to raise funds, similarly, foreign companies can now issue their shares to nationals in India. To enable Indian investors to diversify risk and as a step towards integration of the Indian capital market with the international capital markets, foreign companies are allowed to access the Indian capital market by issuing Indian depository receipts (IDRs). In 2002, the Companies Act was amended to allow the foreign companies to offer shares in the form of depository receipts in India ((Pathak, Id., at 158-159)). In an IDR, foreign companies would issue shares, to an Indian Depository (say National Security Depository Limited – NSDL), which would in turn issue depository receipts to investors in India. The actual shares underlying the IDRs would be held by an Overseas Custodian, which shall authorise the Indian Depository to issue the IDRs ((Indian Depository Receipts (IDRs), BANKINGUPDATE http://www.bankingindiaupdate.com/idr.htm, last updated March 20, 2012.)). A foreign company issues and deposits new shares with an Indian depository (say, National Securities Depository Ltd (NSDL) or Central Depository Service Ltd or CDSL), such a depository then, in turn, issues equivalent shares in rupees to investors in India. This is exactly the same way Indian companies like Infosys, Reliance and ICICI Bank raised money through Global Depository Receipts (GDRs) or American Depository Receipts (ADRs) in the past from global markets. India is just replicating this model to provide a window to global corporations to raise money from India and list on the domestic bourses ((Anand Adhikari, Indian Depository Receipts, Business Today, May 30, 2010, 26)).
Legal and regulatory framework:
The Ministry of Corporate Affairs, in exercise of powers available with it under section 642 read with section 605A had prescribed the “Companies (Issue of Indian Depository Receipts) Rules, 2004 (IDR Rules)” vide notification number GSR 131(E) dated February 23, 2004. These Companies rules provide for (a) Eligibility for issue of IDRs (b) Procedure for making an issue of IDRs (c) Other conditions for the issue of IDRs (d) Registration of documents (e) Conditions for the issue of prospectus and application (f) Listing of Indian Depository Receipts (g) Procedure for transfer and redemption (h) Continuous Disclosure Requirements (i) Distribution of corporate benefits ((Indian Depository Receipt, WIKIPEDIA, http://en.wikipedia.org/wiki/Indian_Depository_Receipt, [last updated March 20 2012])).
These rules were operationalised by the Securities and Exchange Board of India (SEBI)—the Indian markets regulator in 2006. Operation instructions under the Foreign Exchange Management Act were issued by the Reserve Bank of India on July 22, 2009. The SEBI has been notifying amendments to these guidelines from time to time ((RBI/2009-10/106 A.P. (DIR Series) Circular No. 05, Issue of Indian Depository Receipts, RESERVE BANK OF INDIA, http://rbidocs.rbi.org.in/rdocs/Notification/PDFs/APDIR5220709.pdf [last updated July 22, 2009])).
Eligibility of companies to issue IDRs:
The regulations relating to the issue of IDRs are contained within “Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009”, which get revised from time to time. The regulations were lastly updated till Oct.12, 2012. According to Clause 26 in Chapter III (“Provisions as to public issue”), the following are required of any company intending to make a public issue in India:
- It has net tangible assets of at least Indian Rupee three crore in each of the preceding three full years (of twelve months each), of which not more than fifty per cent are held in monetary assets Provided that if more than fifty percent of the net tangible assets are held in monetary assets, the issuer has made firm commitments to utilise such excess monetary assets in its business or project; Provided further that the limit of fifty percent on monetary assets shall not be applicable in case the public offer is made entirely through an offer for sale.
- It has a minimum average pre-tax operating profit of rupees fifteen crore, calculated on a restated and consolidated basis, during the three most profitable years out of the immediately preceding five years.
- it has a net worth of at least INR one crore in each of the preceding three full years (of twelve months each);
- the aggregate of the proposed issue and all previous issues made in the same financial year in terms of issue size does not exceed five times its pre-issue net worth as per the audited balance sheet of the preceding financial year;
- if it has changed its name within the last one year, at least fifty per cent. of the revenue for the preceding one full year has been earned by it from the activity indicated by the new name.
- Chapter X of the regulations deals with issue of IDRs. Under the chapter there is Clause 96 to 106. Clause 97 provides for additional requirements from a foreign company intending to make an issue of IDRs:
“An issuing company making an issue of IDR shall also satisfy the following:
- the issuing company is listed in its home country;
- the issuing company is not prohibited to issue securities by any regulatory body;
- the issuing company has track record of compliance with securities market regulations in its home country.
Explanation: For the purpose of this regulation, the term ‘home country’ means the country where the issuing company is incorporated and listed.”
IDRs issue process
According to SEBI guidelines, IDRs will be issued to Indian residents in the same way as domestic shares are issued. The issuer company will make a public offer in India, and residents can bid in exactly the same format and method as they bid for Indian shares. The issue process is exactly the same: the company will file a draft red herring prospectus (DRHP), which will be examined by SEBI. The general body of investors will get a chance to read and review the DRHP as it is a public document, available on the websites of SEBI and the book running lead managers. After SEBI gives its clearance, the company sets the issue dates and files the document with the Registrar of Companies. In the next step, after getting the Registrar’s registration ticket, the company can go ahead with marketing the issue. The issue will be kept open for a fixed number of days, and investors can submit their application forms at the bidding centers. The investors will bid within the price band and the final price will be decided post the closure of the Issue. The receipts will be allotted to the investors in their demat account as is done for equity shares in any public issue. On 256th October 2010, SEBI notified the framework for rights issue of Indian Depository Receipts (IDRs). Disclosure requirement for IDR rights would more or less be in line with the reduced requirement applicable for domestic rights issue ((SEBI Doubles Retail Limit, Tightens IPO Norms, REDIFF, http://business.rediff.com/report/2010/oct/26/sebi-tightens-ipo-norms.htm [last updated Oct. 26 2010])).
Why Will They Come to India?
It’s a good way for foreign companies to raise capital in India, as more investors flock to the equity markets on the back of an economy that is likely to grow at over eight per cent. A listing here not only strengthens its brand presence, but also shows its commitment to India ((Adhikari, supra note. 19)).
What’s for the Investors?
It’s an opportunity for Indian investors to take advantage of the growth opportunity in a global corporation. The shares can be bought and sold like any other on the Indian markets but come without voting rights. Investors can claim dividends and capital appreciation ((Adhikari, Id)).
Does It Make Sense to Invest?
Not for small investors, as any investment in an overseas company requires research on its parent company and operations elsewhere. For instance, Standard Chartered’s Indian operation reported profits of $1 billion in 2009, but this accounts for just 20 per cent of its global profit. In addition, investors also have to track the prices of the parent’s share on global bourses where they are listed or in their home country ((Adhikari, Id)).
Listing a company’s stock abroad should have no impact on its price when domestic and foreign equity markets are fully integrated. If barriers exist, however, a firm’s share value may be affected by the cross-listing announcement ((Tripathy, supra note 9, at 10)).
Fungibility:
A term called “Fungibility” is used for these IDR’s, now what does this means & how it relates to IDR/ADRs? The actual meaning of the word fungible is the ability to substitute one unit of a financial instrument for another unit of the same financial instrument. However, in trading, fungibility usually implies the ability to buy or sell the same financial instrument on a different market with the same end result.
Its a financial instrument (i.e. individual stock, futures contract, options contract, etc.) is considered fungible if it can be bought or sold on one market or exchange, and then sold or bought on another market or exchange. For example, if one hundred shares of an individual stock can be bought on the NASDAQ in the US, and the same one hundred shares of the same individual stock can be sold on the London Stock Exchange in the UK, with the result being zero shares, the individual stock would be considered fungible. There are many fungible financial instruments, with most popular being individual stocks, some commodities (e.g. gold, silver, etc.), and currencies ((Bhavik Shah, Fungibility And Standard Chartered IDRs, RAREINDIANSHARES http://www.rareindianshares.info/2012/03/fungibility-and-standard-chatered-idrs.html, [last updated March 18, 2012])).
Fungible financial instruments are often used in arbitrage trades, because the difference in the price (the arbitrage part) often comes from a difference in location (the fungible part). For example, if the Euro to US Dollar exchange rate was 1.2500 in the US and 1.2505 in the UK, an arbitrage trader could buy Euros in the US, and then immediately sell Euros in the UK, making a profit of 0.0005 per Euro (or $5 per €10,000), because Euros are a fungible financial instrument. Similarly it implies to Stocks IDRs etc. ((Shah, Id))
Legal framework for fungibility:
Rule 10 of Companies (Issue of Indian Depository Receipts) Rules, 2004:-
“Procedure for Transfer and redemption of IDRs:-
A holder of IDRs may transfer the IDRs or may ask the Domestic Depository to
redeem these IDRs, subject to the provisions of the Foreign Exchange Management
Act, 1999 and other laws for the time being in force.”
RBI’s circular dated July 22, 2009:-
“Fungibility:-
Automatic fungibility of IDRs is not permitted.
Period of redemption:-
IDRs shall not be redeemable into underlying equity shares before the expiry of one year period from the date of issue of IDRs.”
Regulation 100 of Chapter X of SEBI (ICDR) Regulations, 2009:-
“IDRs shall not be automatically fungible into underlying equity shares of issuing company.”
Provision of Two-way fungibility
With the objective of encouraging greater foreign participation in Indian capital market, in the Budget-2012, the Finance Minster Pranab Mukherjee allowed two-way fungibility of Indian Depositary Receipts ((Anita Bhoir, Budget 2012: Standard Chartered Rises To 20% On IDR Fungibility Announcement, THE ECONOMIC TIMES, March 16, 2012, http://articles.economictimes.indiatimes.com/2012-03-16/news/31201207_1_fungibility-idrs-standard-chartered)). This would enable more foreign firms to list and issue their shares in India. Accordingly, RBI and SEBI, by circulars dated 28th August, 2012, have approved partial conversion of IDRs into equity shares late in August, while capping the funds to be raised through IDRs at USD 5 billion. As per the SEBI Circular:
“… to retain the domestic liquidity, it is decided to allow partial fungibility of IDRs (i.e. redemption/ conversion of IDRs into underlying equity shares) in a financial year to the extent of 25 per cent of the IDRs originally issued,”
By a Ministry of Corporate Affairs (MCA) notification (dated Oct. 1, 2012) in official gazette, Government has amended the Companies (Issue of Indian Depository Receipts) Rules, 2004 to permit part-conversion of securities into equity shares by investors.
As per the Ministry of Corporate Affairs notification, “A holder of IDRs may transfer the IDRs, may ask the domestic depository to redeem them or, any person may seek re-issuance of IDRs by conversion of underlying equity shares,” subject to the provisions of Foreign Exchange Management Act and SEBI rules at the time.
The two-way fungibility allowed for IDRs is similar to the limited two-way flexibility allowed for ADRs and GDRs issued by domestic companies in foreign markets. This would enable Indian shareholders to convert their depository receipts into equity shares of the issuer company and vice versa. The restrictions on fungibility was seen as one of the major factors for foreign entities keeping away from listing their IDRs. So far, only foreign company, UK-based banking major Standard Chartered, has listed its IDRs in India. SEBI had said it decided to prescribe a frame work for two-way fungibility of IDRs to improve the attractiveness and long-term sustainability of such instruments ((Government Amends Rules To Allow IDR Conversion Into Shares, THE ECONOMIC TIMES, Oct 8, 2012, http://articles.economictimes.indiatimes.com/2012-10-08/news/34323045_1_indian-depository-receipts-idr-conversion-fungibility)).
Taxation Implications:
The good news is that IDR does not come under the purview of Securities Transaction Tax. But the IDR holder will have to pay tax on the dividend income earned. It is not yet clear whether the tax payable would be equal to the Dividend Distribution Tax which for the current fiscal stands at 16.61%. So tax seems sure but the rate is yet unsure. Currently, Long term gains made from Indian Stock Exchanges (stock held for more than 12 months) is completely exempted from tax while Short term capital gains tax (held less than 12 months) stands at 15%. But the IDRs does not fall under the STT, so maybe it will not enjoy the same benefits as the shares listed on the Indian Exchanges enjoys. So this means that IDR’s will be taxed like any other asset –long term tax- held for over 36 months would be around 20%. Short term tax, when asset is held for less than a year, will be like regular income earned, at 30.9% ((Bhavik Shah, What Does IDR Means To An Indian Shareholder in Terms of Taxation, (May 17 2012) http://www.bhavikkshah.blogspot.in/2010/05/what-does-idrs-means-to-indian.html)).
Indian investors need to consider the tax implications of investment in the IDRs. While Section 605A of the Companies Act, 1956 (the “Companies Act”) discusses IDRs, there are no specific provisions regarding capital gains taxation of IDRs in the Companies Act or in the Income Tax Act, 1961. Therefore, the general rules relating to capital gains taxation apply and no benefits for long term holders of IDRs (i.e. if the Securities Transaction Tax is paid, there is no capital gains tax on long term holders of listed securities) are available. It is possible that the upcoming “Direct Tax Code” may clarify the issue but as of now the capital gains tax treatment of IDRs is not favourable ((Indian Depository Receipts, LEXVIDHI, http://www.lexvidhi.com/article-details/indian-depository-receipts-302.html, [last updated March 22, 2012])).
“Standard-Chartered” – first foreign Company to Issue IDRs:
Standard Chartered is the first and currently, the only company with depository receipts in India, where 10 IDRs equalled one share in the London-based Standard Chartered bank. Even though Standard Chartered Plc was successful in raising nearly Rs. 25bn IDR sales in May 2010, the buyers of the IDR were not as lucky as the receipts have traded at a tremendous discount to their underlying shares. Experts believe that foreign players would only be keen on issuing IDRs when Standard Chartered IDRs trade at par with their foreign shares ((Standard Chartered IDR Extends Friday’s Gains, INDIAINFOLINE, http://www.indiainfoline.com/Markets/News/Standard-Chartered-IDR-extends-Fridays-gains/5378168796, [last updated March 19, 2012])). But, as the limited two-way fungibility has been allowed, situation has changed, which is evident with the announcement of Interim Dividend by Standard Chartered on its IDRs ((See: StanChart announces interim dividend of Rs 1.34 per IDR, THE ECONOMIC TIMES, (Oct 1, 2012) http://articles.economictimes.indiatimes.com/2012-10-01/news/34199687_1_indian-depository-receipt-stanchart-s-idr-idr-holders)).
Conclusion:
Generally, depository receipt is one of the ways for the investor to buy shares in a foreign company and also it is also beneficiary for the company because it doesn’t have to leave its home state. ADRs and GDRs have proved it well. Also, the Indian companies are not behind in utilising the DRs. But IDR has failed to make an ideal market for itself, which is evident from the fact that till now, only one foreign company has issued IDRs. Besides Standard Chartered, no company has come forward to raise capital through IDRs. This is due to, previous absence of two-way fungibility, prohibition on insurance companies from investing in IDRs and lack of clear and specific tax implications.
As the two-way fungibility is allowed, it is an indicator that we are on the path of allowing full convertibility. Regarding taxation, the implications are hope to made cleared by Government the wake of the changing scenario or by the Direct tax Code.
So, it is clear that the market of the IDRs is not fully developed and if we want to develop it, if we want to encourage the shareholder base, there is a strong need to modify the framework to facilitate the issue of IDRs.