Alternative Funds 2021

Last Updated October 14, 2021

India

Law and Practice

Authors



Trilegal was founded in 2000 and has rapidly become a top-tier, full-service law firm with over 450 lawyers led by more than 65 partners. The lawyers are equipped with both local insight and expertise, ensuring that they deliver cost-effective, deal-oriented and high-quality legal advice. Trilegal has represented clients in some of the most complex and high-value transactions in India from its offices in Mumbai, New Delhi, Bangalore and Gurgaon. Its areas of expertise include investment funds and asset management, capital markets, M&A, strategic alliances and joint ventures, private equity and venture capital, banking and finance, restructuring, dispute resolution, regulatory, real estate, and taxation. The firm has incorporated a number of international best practices into its operations and its client roster includes leading global corporations and fund sponsors. The Trilegal asset management and funds team has previously acted as GP counsel for funds raised by established GP houses such as Morgan Stanley, Apollo, Brookfield, ICICI, Kotak and Edelweiss. The team has also acted as LP counsel for marquee investors such as International Finance Corporation, FCDO, Ontario Teachers’ Pension Plan, Australian Super, Asian Development Bank, New Development Bank, NIIF and SIDBI.

Over the last few years, alternative investment has grown to be an attractive source of funding for Indian businesses. The increasing flow of alternative funds feeds start-ups, private companies, entrepreneurs and others, who may not always qualify for traditional capital sourcing. Whereas traditional sources of finance, such as banks, have a limited risk appetite, alternative investment provides enterprises with stable long-term "patient" capital.

While India previously regulated venture capital funds (VCFs), it has now cast a much broader net seeking to cover other types of alternative funds, including private equity, infrastructure, debt, social venture and hedge funds. Alternative investment funds (AIFs) in India are governed by the Indian securities regulator, the Securities and Exchange Board of India (SEBI), under the SEBI (Alternative Investment Funds) Regulations, 2012 ("AIF Regulations").

AIF Regulations

In brief, the AIF Regulations define an AIF as a privately pooled investment vehicle set up in India, which raises funds from investors and invests in accordance with a defined investment policy for the benefit of its investors. The AIF Regulations mandate that an AIF should have a sponsor and a manager, although the manager of an AIF may also act as the sponsor. The AIF Regulations also mandate that the manager or sponsor of the AIF should make a sponsor investment, ie, have "skin in the game" (which cannot be set off against the management fee).

The AIF Regulations exclude funds regulated under the SEBI (Collective Investment Schemes) Regulations, 1999; the SEBI (Mutual Funds) Regulations, 1996; and any other regulations issued by Indian regulators that regulate activities to do with pooling of capital or fund management.

The scope of AIFs, under the AIF Regulations, excludes:

  • holding companies;
  • family trusts;
  • employee welfare/gratuity trusts;
  • special purpose vehicles (SPVs) that have not been established by fund managers;
  • funds managed by securitisation or reconstruction companies; and
  • any such pool of funds which is directly regulated by any other regulator in India.

While investors in an AIF could be domestic or foreign, each investor is required to commit (ie, undertake to contribute to the fund by way of a legally binding document) a minimum amount of capital, and an AIF is required to raise a minimum amount of commitment from its investors prior to commencing operations (for further details, see 2.3 Regulatory Regime).

As per the data available from SEBI on 31 March 2021, in the nine years since the promulgation of the AIF Regulations, AIFs in India have raised funds worth approximately USD31 billion, out of which approximately USD27 billion have been invested. With the growing appetite of sophisticated investors in India, these numbers are only expected to rise.

AIFs have been classified under three categories with the intention of distinguishing the investment criteria and providing a framework for regulatory concessions under other laws, depending on the category.

A change in category is only permitted if an AIF has not made any investments and if the AIF has accepted commitments it will permit investors to withdraw with a fee refund if applicable.

The following are the three categories of AIFs.

Category I AIFs

This category includes funds which invest in start-ups, early-stage ventures, social ventures, small and medium enterprises (SMEs), infrastructure or other sectors which the government or regulators consider socially or economically desirable. VCFs (including angel funds), SME funds, social venture funds, and infrastructure funds have been categorised as sub-categories of Category I AIFs. These AIFs face stricter regulation, but also, arguably, enjoy certain benefits. These AIFs are closed-end and have a minimum tenure of three years.

Category II AIFs

This category includes funds which do not specifically fall under Category I or Category III and do not undertake leverage or borrowing other than to meet their day-to-day operational requirements. Hence, Category II is the residual category of AIFs (see Category III AIFs, below).

Private equity funds (ie, funds investing primarily in equity or equity-linked instruments or partnership interests) and debt funds (ie, funds investing primarily in debt or debt securities) for which, typically, no specific incentives or concessions are given by the government/any regulator, fall in this category. Similar to Category I AIFs, Category II AIFs are also closed-end and have a minimum tenure of three years.

Category III AIFs

This category includes funds which employ diverse or complex trading strategies and may employ leverage. Hedge funds, funds which trade with a view to making short-term returns, and other funds which are open-end and for which no specific incentives or concessions are given by the government or any other regulator, fall in this category. This category is perceived to be for high-risk, high-reward investments. AIFs seeking to invest primarily in listed markets are also bundled in this category, even if their strategy is long hold. Category III AIFs can be open-end or closed-end and have no minimum tenure.

Accredited Investor Regime

With effect from August 2021, SEBI has introduced an Accredited Investor (see 4.1 Types of Investor in Alternative Funds) regime, and correspondingly a construct of "Large Value Fund for Accredited Investors" (with each such AIF still falling within the categories described above). A Large Value Fund for Accredited Investors may be formed subject to the condition that each of its investors (except the manager, sponsor, employees/directors of the AIF and employees/directors of the manager) are Accredited Investors and each of them commits a minimum of INR700 million. A Large Value Fund for Accredited Investors enjoys certain regulatory relaxations, with key relaxations being described in 2.3 Regulatory Regime

The AIF Regulations permit an AIF to be formed as a trust, company, or a limited liability partnership (LLP) in India. Out of these three structures, there is stark preference among Indian managers to structure AIFs as trusts. As of 22 August 2021, 783 AIFs were registered with SEBI. Of these, 762 were registered as trusts, 19 as LLPs, and two as companies.

The clear preference for trusts as a viable AIF structure stems primarily from two distinct reasons.

  • Structural flexibility – the parties involved enjoy discretion to contractually decide the finer details of the AIF. While the Indian Trusts Act, 1882 does place certain obligations on parties operating under a trust structure, parties mostly have a free hand to contractually design the structure of the AIF (far more than they would have with a company or an LLP).
  • Compliance requirements – there are no disclosure or reporting requirements under the Indian Trusts Act, 1882. Indian trust law permits parties to maintain confidentiality, which is very useful when it pertains to the sensitive information of an AIF and its investors. While the instrument of trust, ie, a trust deed or an indenture, must be registered with the local government authority, the substantive terms of investment are usually captured in:
    1. the contribution/subscription agreement entered into by and among the investment manager, trustee and each investor; and
    2. the investment management agreement entered into between the investment manager and the trustee.

Such contribution agreement and investment management agreement are not required to be made public.

It is important to note that under Indian law, a trust does not have a separate legal personality. The legal ownership of the trust lies with the trustee(s), and the investors are beneficiaries who have a beneficial interest in the trust.

AIFs can either be structured as single-scheme vehicles or have multiple schemes running under a single AIF licence. In case of multiple scheme AIFs, most conditions of the AIF Regulations are applied at scheme level.

Key Parties

An AIF formed as a trust will require a trustee. Typically, third-party professional trusteeship service providers are appointed as the trustees of AIFs. An AIF formed as a trust will also require a "settlor" to settle the trust. This can be the investment manager/sponsor or any Indian-resident individual. Generally, there are no ongoing liabilities for a settlor.

Governing Documents

AIFs in India require the following documents.

Constitutional documents

A trust deed is required for the settlement of the AIF as a trust (and for related matters, such as appointment of the trustee and granting the trust requisite powers). In the case of an LLP, the constitutional document is an LLP agreement, and in the case of a company it is the memorandum of association, articles of association and any shareholders’ agreement. Constitutional documents are required to be filed with SEBI.

Marketing documents

SEBI requires an AIF to raise funds through a private placement memorandum/offering memorandum (privately placed) or PPM. This is required to be filed with SEBI. Schemes of an AIF are also required to file a PPM each in order to raise funds. With effect from November 2021, PPMs of an AIF (including each scheme) are required to be filed with SEBI through a merchant banker.

An AIF can raise funds only by way of issuing a PPM to the investors on a private placement basis, ie, units of an AIF cannot be issued to the public at large. “Units” are the beneficial interest of the investor in the AIF/scheme of AIF and may be either fully or partly paid up. A PPM must disclose to the investors all material information necessary for the investors to take an informed decision on their investment in the AIF. This would include information such as:

  • the investment mandate of the AIF;
  • tenure of the AIF;
  • risk management tools and parameters employed by the AIF;
  • fees and expenses;
  • key service providers such as the manager/sponsor and key investment team;
  • the process of distribution of the investment proceeds to the investors;
  • the process of liquidation of the AIF;
  • disciplinary history; and
  • jurisdiction-specific legal and regulatory requirements.

See 2.17 Disclosure/Reporting Requirements, for a discussion on the standard form for PPM prescribed by SEBI.

Other agreements

An investment management agreement between the trustee/LLP/company and the investment manager governs delegation terms by the former to the investment manager for the management and administration of the AIF.

In the case of an AIF formed as a trust, a contribution/subscription agreement between each investor, the trustee (on behalf of the AIF) and the investment manager usually provide the substantive terms of the AIF. In the case of an LLP, this is drafted as an LLP agreement, and in the case of a company, as a shareholders’ agreement (and a subscription agreement).

The AIF Regulations permit domestic and foreign investors to invest in AIFs by way of subscription to units of the AIF. An AIF cannot have more than 1,000 investors, and in the case of an angel fund, no more than 200 investors. Notably, no regulatory or government approvals are required for foreign investors to invest in AIFs.

The total commitment of all the investors in an AIF is termed its “corpus”. The AIF's “investible funds”, ie, funds which it could invest into portfolio entities, are arrived at after subtracting the estimated fund expenses for administration and management from the corpus estimated for the tenure of the fund. The “tenure” of the fund means the duration of the fund, ie, the period between the day of its launch and its last day. Each scheme of an AIF must have a minimum corpus of INR200 million (with angel funds being allowed to have a minimum corpus of INR50 million). Uninvested portions of investible funds and divestment proceeds pending distribution to investors may be invested in specified temporary investments until utilisation or distribution, in accordance with the AIF’s fund documents.

An investor, other than an Accredited Investor, must commit a minimum of INR10 million to an AIF, as per the AIF Regulations. This limit has been reduced to INR2.5 million for employees/directors of the AIF or the investment manager, and for investors investing in angel funds.

The manager/sponsor is mandated to invest to provide some "skin in the game". For Category I and II AIFs, this is set at the lesser of INR50 million or 2.5% of the corpus of the AIF, and for Category III AIFs, this is set at the lesser of INR100 million or 5% of the corpus of the AIF. This is a continuing interest in the AIF and cannot be set off against management fees.

Key Diversification/Investment Limits

Category I and II AIFs cannot invest more than 25%, and Category III AIFs cannot invest more than 10%, of their investible funds in a single portfolio entity. Importantly, AIFs are required to adhere to the aforesaid investment diversification limit at all times, ie, at the time of each investment. However, by way of exception to the above-mentioned limits, a Category I and II Large Value Fund for Accredited Investors may invest up to 50% and a Category III Large Value Fund for Accredited Investors may invest up to 20% of their investible funds in a single portfolio entity. Furthermore, the aforesaid diversification conditions do not apply to an AIF established in GIFT City (see 2.16 Key Trends).

Category I and II AIFs are required to invest primarily in unlisted portfolio entities. "Primarily", in this context, is meant to indicate that the majority of the investments of a Category I or II AIF must be in unlisted securities. Subcategories of Category I AIFs also have to comply with certain further investment restrictions.

Category I AIFs registered as VCFs must invest at least two thirds of their investible funds in unlisted equity shares/equity-linked instruments of a venture capital undertaking; or companies listed/proposed to be listed on an SME exchange/SME segment of an exchange within its life cycle. For this purpose, a venture capital undertaking is defined as a domestic company, which is not listed on a recognised Indian stock exchange at the time of making investment.

Category I AIFs registered as SME funds must invest at least 75% of their investible funds in unlisted securities/partnership interests of venture capital undertakings or investee companies, that are SMEs/companies listed or proposed to be listed on an SME exchange or the SME segment of an exchange or in the units of a Category II AIF that primarily invests in such venture capital undertakings or investee companies.

Category I AIFs registered as social venture funds must invest at least 75% of their investible funds in unlisted securities/partnership interests of social ventures and may accept grants of a minimum of INR2.5 million for the same, provided that such minimum amount requirements do not apply to Accredited Investors.

Category I AIFs registered as infrastructure funds must invest at least 75% of their investible funds in unlisted securities/partnership interests of venture capital undertakings or investee companies, or SPVs, that are engaged in/formed for the purpose of operating, developing or holding infrastructure projects or in the units of a Category II AIF that primarily invests in such venture capital undertakings or investee companies or SPVs.

Category III AIFs may invest in securities of listed or unlisted investee companies, derivatives, units of other AIFs or complex/structured products.

Category I AIFs are permitted to invest in the units of Category I AIFs of the same subcategory and Category II AIFs; Category II AIFs are permitted to invest in Category I and Category II AIFs; and Category III AIFs are permitted to invest in the units of Category I or Category II AIFs. However, in each case, an AIF cannot invest in the units of a fund of funds. 

An AIF can only invest in its associates or in the units of AIFs managed or sponsored by its manager/sponsor or their associates with the consent of 75% of its investors.

There are restrictions on AIFs making overseas investments. In addition to prior approval from SEBI, the aggregate overseas investments of an AIF are limited to 25% of its investible funds. An AIF applying to SEBI is required to demonstrate that its overseas investment is unlisted and has an "Indian connection". In addition, there is an industry-wide limit which the SEBI and Reserve Bank of India (RBI) jointly administer, which is currently at USD1.5 billion.

Stewardship Responsibilities

In December 2019, SEBI introduced "stewardship responsibilities" for AIFs – to protect client wealth and to ensure greater responsibility towards clients by enhancing monitoring of, and engagement with, their investee companies. To this effect, SEBI released a Stewardship Code that came into effect from 1 April 2020 – all categories of AIFs are required to follow the Stewardship Code in relation to their investments in listed equity investments. A similar stewardship code applies to mutual funds in the country.

Under the Stewardship Code, AIFs must engage with investee companies through discussions with management, or voting in shareholder/board meetings, on matters such as corporate governance, strategy, performance, and material environmental, social and governance opportunities etc.

The move towards such stewardship responsibilities and bench-marking activities (see 2.9 Rules Concerning Other Service Providers) reflects how SEBI is prioritising data collection, investor protection and transparency in the AIF industry.

Stamp Duty

As of June 2020, the collection of a nominal stamp duty (ie, a type of document tax) on the issue, sale and transfer of units of AIFs has also been mandated.

Other Factors

AIFs also serve as an attractive mode of investment because there are no restrictions on the repatriation of cash to investors (including offshore investors).

General Obligations

AIFs and their personnel have, furthermore, to abide by certain general obligations as provided under the AIF Regulations.

  • The AIF, its manager and key managerial personnel, trustee, trustee company, directors of the trustee company, and designated partners/directors must abide by and ensure that the AIF abides by the Code of the Conduct (see 3.2 Regulatory Regime).
  • An AIF must have detailed and approved policies and procedures to ensure that all decisions of the AIF are in compliance with its private placement memorandum, other fund documents and laws/regulations, and the manager must ensure compliance with the decisions of the AIF in respect thereof. These policies/procedures and their implementation must be reviewed by the manager on a regular basis or upon business developments to ensure continued appropriateness.
  • The manager may constitute an investment committee for the purpose of approving the decisions of the AIF, subject to the conditions laid down by SEBI from time to time. The members of the investment committee must ensure that its decisions comply with the policies and procedures approved by the manager and trustee in respect thereto, except where each investor of the AIF (other than the manager, sponsor, employees/directors of the AIF or employees/directors of the manager) has invested no less than INR700 million in the AIF and has furnished a waiver of this compliance. The members of the investment committee must also comply with the Code of Conduct (see 3.2 Regulatory Regime). Any external members of the investment committee, whose names have not been disclosed in the fund documents during the on-boarding of investors, may only be admitted to the investment committee with the consent of 75% of the investors by value.
  • The sponsor/manager must appoint a custodian for the AIF (see 2.9 Rules Concerning Other Service Providers).
  • The book of accounts of the AIF must be audited annually by a qualified auditor (see 2.9 Rules Concerning Other Service Providers).

AIFs cannot grant loans simpliciter; however, they can subscribe to debt instruments such as non-convertible debentures and/or optionally convertible debentures.

Furthermore, Category I and II AIFs are also limited in their power to raise loans. Category I and II AIFs cannot leverage or borrow, except to meet day-to-day needs for a period no longer than 30 days, for not more than 10% of their investible funds (see 2.3 Regulatory Regime) and not more than four times a year.

Category III AIFs, however, can leverage and borrow. Such leverage and borrowing can be undertaken with the consent of the investors and is also subject to a maximum cap as may be prescribed by SEBI, provided that such AIFs disclose information regarding:

  • the overall level of leverage employed;
  • the level of leverage arising from borrowing of cash;
  • the level of leverage arising from a position held in derivatives or in any complex product; and
  • the main source of leverage in the AIF to the investors and to SEBI periodically, as may be specified by SEBI.

The current leverage limit on Category III AIFs, as prescribed by SEBI, is twice the net asset value of the AIF.

However, the aforesaid leverage conditions do not apply to an AIF established in GIFT City (see 2.16 Key Trends).

AIFs can make investments only by way of subscribing to securities. Cryptocurrencies are currently not considered as securities under Indian law and therefore AIFs cannot invest in cryptocurrencies. It is also not possible for an AIF to hold hard assets and therefore, necessarily, investments are typically made in securities of companies or in LLPs.

AIFs are required to register with SEBI by way of filing an application form in a prescribed format. The SEBI application form should be accompanied by:

  • the PPM; and
  • the constitutional documents of the AIF.

Certain undertakings and declarations, including on disciplinary history, are also required to be submitted to SEBI.

Applications are submitted to SEBI online. As per the AIF Regulations, SEBI is required to approve or reject the application within 30 days. However, SEBI has the power to request additional information. While each case is different, most applications are processed by SEBI within two months.

All AIFs are required to have a manager entity and a sponsor entity (often one and the same entity).

An investment manager provides investment management services to the AIF. SEBI requires that the manager should be an entity incorporated in India. An AIF is also required to have at least one sponsor (which needs to be named as such to SEBI). The sponsor may be an Indian entity or an offshore entity. The sponsor could also be any person(s) that sets up the AIF. In the case of an AIF organised as a company, this includes a promoter, and for an LLP, it includes a designated partner.

If the manager and sponsor of an AIF are ultimately owned and controlled by resident Indian citizens and such persons are in control of the AIF to the general exclusion of others (an "IOCC AIF"), then investments by the AIF are treated as domestic investments, ie, no restrictions or conditionalities related to foreign direct investment (FDI) will apply, such as sectoral restrictions, impermissibility of certain instruments and pricing guidelines.

In brief:

  • "ownership" is denoted by a holding of more than 50% of the beneficial interest of equity and equity-linked instruments (which is to be tested for the manager and sponsor, and not the AIF); and
  • "control" means the right to appoint the majority of the directors or to control the management or policy decisions, including by virtue of shareholding or management rights or shareholders' agreement or voting agreement (this will need to be tested for the sponsor, manager and, for clarity, control will also need to be tested in respect of the AIF).

Furthermore, the members of the key investment team of an investment manager must have adequate experience and also meet certain qualifications:

  • at least one member of the key investment team must have not less than five years' experience in advising and managing pools of capital, or in fund/asset/wealth/portfolio management, or in the business of buying, selling and dealing with securities, or other financial assets, and have the relevant professional qualification for the same; and
  • at least one member of the key investment team must also have a professional qualification in finance/accountancy/business management/commerce/economics/capital market/banking from a university or recognised institution.

Both the aforementioned qualification requirements may be fulfilled by the same individual.

While not specific to AIFs, it is relevant to note that:

  • companies must have a local director; and
  • LLPs must have at least two designated partners (corporate partners must nominate one individual to act as a designated partner) of which one must be resident in India.

AIFs and their manager are permitted to appoint third-party service providers for certain functions. These typically include audit, custody, valuation and compliance functions. SEBI does not permit delegation of core functions.

Category I and Category II AIFs are required to appoint a SEBI-registered custodian if the corpus of such AIF is more than INR5 billion. A Category III AIF must appoint a SEBI-registered custodian irrespective of its size. An AIF is required to provide its investors with a valuation of its assets conducted by an independent valuer on a six-monthly basis (or annually, if 75% of the investors by value of their investment in the AIF agree to such annual valuation). Regulations also impose a mandatory audit requirement.

Auditing

SEBI has also mandated an annual audit by a qualified auditor or a legal professional to ensure the AIF's compliance with the SEBI format PPM. However, AIFs that do not have to follow the SEBI format PPM (see 2.2 Fund Structures) are not required to undertake the audit exercise for PPMs.

Benchmarking

SEBI has also introduced the requirement for an industry benchmark for AIFs (except angel funds) to enable comparison of the AIF industry with other investment avenues and global investment opportunities, and to help investors assess the performance of the AIF industry. To this end, SEBI has made benchmarking of AIFs’ performance mandatory and has introduced a framework to facilitate the use of data collected by the benchmarking agencies. Such benchmarking is to be undertaken by those AIFs that have completed a year from the date of their first closing. Ongoing benchmarking exercises are being undertaken by credit-rating agencies.

Non-local service providers to AIFs are not subject to additional requirements.

Indian income tax laws accord “tax pass-through” status to SEBI-regulated Category I and II AIFs established or incorporated in India. Category III AIFs are not accorded such benefits; however, Category III AIFs set up as trusts may potentially follow general principles of trust taxation and other provisions of Indian tax laws to achieve tax transparency.

The statutory “tax pass-through” status (for Category I and II AIFs) has been granted in respect of all income (other than income chargeable under the heading "profits and gains of business or profession" earned by such an AIF). If income earned by an AIF is not characterised as business income, it is taxable in the hands of the investors of that AIF, in the same manner as if it were the income accruing to, or received by, such investors had they invested the money themselves. The income received by such AIFs is deemed to be of the same type and in the same proportion as if it had been received by investors.

If the income of the AIF is characterised as “business income” received by or accruing or arising to the AIF, such income is taxable at the maximum marginal rate applicable to the AIF.       

The taxation of offshore investors is governed by the provisions of the Indian Income Tax Act, 1961 (IT Act), read with the provisions of the double-taxation avoidance agreements (DTAAs) between India and the country of residence of such offshore investor. The provisions of the IT Act would apply to the extent that they are more beneficial than the provisions of the DTAAs.

Offshore investors in AIFs generally qualify for benefits under the DTAAs, subject to customary substance and other requirements.

The use of subsidiaries for investment purposes is not usual, primarily due to potential tax leakage in cash extraction from the subsidiary. Therefore, AIFs using a subsidiary structure tend to have specific commercial considerations that override or offset such issues, eg, infrastructure AIFs may use a subsidiary structure for value creation in a platform.

While the sponsor of an AIF may be an Indian or offshore entity, Indian entities generally act as sponsors in AIFs. This is also partly because the manager of an AIF must be an Indian entity, and the manager and sponsor are often the same entity.

Domestic and Foreign Investors

Under Indian law, AIFs are permitted to raise capital from domestic and foreign investors. Notably, no regulatory or government approvals are required to raise capital from foreign investors. AIFs are permitted to make distributions freely to foreign investors, ie, there are no foreign exchange investment and exchange control restrictions applicable to repatriation of money to foreign investors by means of AIFs, such as pricing guidelines. While a number of development finance and multilateral institutions participate directly in AIFs, it is fairly usual for a fund structure to offer a feeder vehicle offshore, such as in Mauritius, Singapore, the Cayman Islands or Luxembourg, and a large number of AIFs seem to have raised capital from North America and Europe. A key trend which is developing is the emergence of GIFT City as an additional or alternative feeder vehicle jurisdiction for AIFs (see 2.16 Key Trends).

Investors in AIFs are also required to satisfy the customary "know your client" (KYC) checks.

Press Note 3 (2020 Series)

In April 2020, the government issued Press Note 3 (2020 Series), providing that an entity of a country that shares a land border with India or where the beneficial owner of an investment in India is situated in or is a citizen of any such country, such entity can invest only under the government approval route. This is mainly to curb opportunistic takeovers/acquisitions of Indian companies on account of the current COVID-19 pandemic. This rule issued by the government may adversely impact offshore investors seeking to invest in India if they fall within the purview of this restriction, and it adds to the timelines of such investments. Also, there is no clear regulatory prescription as to the meaning of beneficial ownership, as no specific threshold or definition has been prescribed under Press Note 3 (2020 Series).

COVID-19

While the COVID-19 pandemic has affected the current economic situation, there seems to have been an increase in the establishment of special situations funds where a large part of the underlying assets is pre-identified, along with a preference for club-style funds or managed accounts rather than blind pool platforms. The pandemic has also triggered certain end-of-fund life transactions, such as structured secondaries and fund life extensions.

Onshore v Offshore

In light of the liberalised investment and tax regime for AIFs, and predictability over the past few years, a number of offshore investors have started considering direct participation in the onshore pool, rather than investing via an offshore feeder.

The National Investment and Infrastructure Fund

The government, in its capacity as an anchor investor, has established a collaborative investment platform, namely the National Investment and Infrastructure Fund, for international and Indian investors looking for investment opportunities in infrastructure and other high-growth sectors of the country, which includes a fund of funds programme that is emerging as a significant domestic LP.

Promotion of Start-ups and Micro and SMEs

Furthermore, the Small Industries Development Bank of India has been actively investing in various AIFs in order to promote and accelerate the growth of start-ups and micro, small and medium-sized enterprises in India.

Role of Merchant Bankers

SEBI amended the AIF Regulations in August 2021 to prescribe that the PPM of a scheme of an AIF is required to be filed with SEBI through a merchant banker at least 30 days prior to the launch of the scheme (see 2.2 Fund Structures). SEBI may also provide its comments on the PPM to the merchant banker, who must ensure that the comments are duly incorporated into the PPM.

GIFT City

There has also been a recent policy push towards onshore fund management. The Indian government has established an International Finance Services Centre (IFSC) called Gujarat International Finance Tec-City (GIFT City). GIFT City serves as a special economic zone, which is deemed to be an offshore jurisdiction. GIFT City aims to incentivise feeders, traditionally set up outside India, to be set up within the geographical boundaries of India.

Changes to the regulatory framework surrounding AIFs set up in IFSCs have been introduced. Unlike other AIFs in India, which are registered with SEBI, AIFs set up in GIFT City are required to be registered with the International Financial Services Centre Authority (IFSCA). While IFSCA-registered AIFs are, in large part, similar to SEBI-registered AIFs, there are certain key differences between them:

  • the diversification requirements applicable to SEBI-registered AIFs are not applicable to IFSCA-registered AIFs;
  • leverage norms, which are applicable to SEBI-registered AIFs are not applicable to IFSCA-registered AIFs, as long as prior consent of the investors is obtained, appropriate disclosures have been made and risk management frameworks are in place; and
  • IFSCA-registered AIFs can create segregated portfolios by providing separate classes of units within the AIF itself, to co-invest in a portfolio company which cannot be on terms more favourable than the common portfolio of the AIF.

The RBI has also issued relaxations for Indian managers and sponsors to set up a presence in GIFT City for the purpose of managing and/or sponsoring AIFs established in GIFT City.

AIFs are required to provide SEBI with regular reports. Category I and II AIFs are required to submit such reports on a quarterly basis, while Category III AIFs that undertake leverage are required to submit reports on a monthly basis.

Category I and II AIFs are required to provide annual reports to investors containing financial information about their investee companies and material risks to their investors within 180 days from the end of the relevant year. Category III AIFs are required to provide these reports to investors on a quarterly basis within 60 days of the end of the quarter. Additionally, AIFs, irrespective of category, are required to disclose certain information to their investors from a corporate governance and transparency standpoint, including conflicts of interest, risk management, disciplinary history, valuations, and any significant change in the key investment team.

Notably, the manager of an AIF is required to prepare a compliance test report (on compliance with the AIF Regulations) in a prescribed format and submit it to the trustee/sponsor of the AIF within 30 days of the end of every financial year. Any violation detected is to be reported to SEBI by the trustee/sponsor as soon as possible.

To ensure that a minimum standard of disclosure is made to the investors, SEBI has mandated, with effect from 1 March 2020, a standard form of the PPM that all AIFs must follow, which provides a certain minimum level of information. An AIF is exempt from following the SEBI format for its PPM only if:

  • it is an angel fund; or
  • each investor of the AIF commits a minimum capital contribution of INR700 million (USD10 million or an equivalent amount if capital commitments are made in non-INR currency) and provides a waiver, in a prescribed format, that the AIF is not required to provide a SEBI-format PPM.       

Reports and documents in relation to an AIF are not made publicly available.

Over the past few years, a special committee set up to advise on matters relating to alternative investment, the Alternative Investment Policy Advisory Committee (AIPAC), has submitted reports on various policy reforms required to strengthen the alternative investment framework in the country.

The last AIPAC report, issued in July 2018, made certain key recommendations, including the following:

  • AIFs with “100% foreign investment” and India-based management operations should be exempt from goods and services tax (GST), along with incentivising tax structuring in IFSCs;
  • the tax treatment of carried interest paid to managers/sponsors should be treated as long-term capital gains and not as a fee (see 3.5 Taxation of Carried Interest); and
  • investment in AIFs should count towards corporate social responsibility spends (which are currently mandated under Indian company law).

Recently, SEBI has potentially been considering the introduction of a new category of AIFs that will be focused on buying stressed assets directly from banks and non-banking financial companies. The introduction of this new category of AIFs may pave the way for a departure from SEBI’s restriction preventing AIFs from providing loans.

AIF Regulations do not impose any restrictions on the legal structure of managers. Fund managers are usually set up as companies or as LLPs, with the latter gaining more traction in the last few years, since LLPs are potentially more tax-efficient in certain cases. Each structure comes with its attendant considerations, for example, establishing and running a company in India has higher compliance requirements than establishing and running an LLP, but LLP law provides greater government investigative powers.

Accordingly, managers may choose either structure, and the reasons for doing so tend generally to be driven by commercial considerations, rather than legal or regulatory considerations.

A fund manager is not required to be registered with SEBI to carry out its activities as the investment manager of an AIF. However, it could be argued that fund managers are regulated by SEBI under the AIF Regulations to the extent that they act as investment managers to an AIF, particularly given their participation in the regulatory approval process, ongoing regulatory compliance requirements and duties under the regulations.

As part of the regulations, SEBI has prescribed some minimum standards of compliance and transparency, and also retains inspection rights over investment managers/sponsors (with attendant disciplinary powers). SEBI has also specifically imposed a fiduciary obligation on managers.

Code of Conduct

In May 2021, SEBI prescribed a “Code of Conduct” with which an AIF, an AIF manager, the key management personnel of an AIF, the members of the investment committee of an AIF, the trustee company and the directors of the trustee must all comply. In order to strengthen the governance of an AIF, the “Code of Conduct” imposes obligations on the aforementioned parties such as:

  • abiding by applicable laws;
  • maintaining the highest professional/ethical standards in their dealings, dealing fairly with investee companies, not offering/accepting any inducement in connection with the business of the AIF, ensuring that the units of the AIF are not transferred in concert/collusion or without an effective change in beneficial interest, maintaining confidentiality, abiding by the policies pertaining to the mitigation of a potential conflict of interest with respect to the scope of the business and not making misleading/inaccurate statements;
  • making decisions with proper care and diligence and ensuring that they are in the best interests of the investors, including decisions pertaining to investment/divestment and valuations; and
  • document/record in writing key investment/divestment decisions (including justifications for making the same) as well as all correspondences/understandings of a particular deal/transaction.

Other than direct taxes applicable to the management fee received by the managers of AIFs for providing investment and management services, GST at a rate of 18% is applicable on the management fee. There are no specific taxation principles, under direct or indirect tax laws, that apply to managers.

The IT Act provides that a foreign company is treated as tax resident in India if its place of effective management (POEM) is in India that year. POEM is defined as the place where the key management and commercial decisions, necessary for conducting the business of an entity as a whole, are made.

POEM focuses on “substance over form” and provides that the place where the management decisions are taken is more important than the place where the implementation of the decisions takes place. However, an exception to the POEM concept is carved out for companies having turnover or gross receipts equal to or less than INR500 million in a financial year.

While typical permanent establishment rules also apply, POEM is greater in scope and relevance.

In addition to the management fee paid to the manager for providing investment management services, "carried interest" is typically paid for the profit share. Under Indian tax laws, carried interest, if received as a performance fee, is taxable in a similar way to the management fee. However, there are certain tax-efficient structures that managers/sponsors may adopt that seek classification of carried interest as a return on investment.

While there are no regulatory restrictions on managers outsourcing their functions or business operations, managers are not permitted to outsource their core business activities or functions, such as investment-related activities. However, it is important to note that the ultimate responsibility for compliance with the AIF Regulations and the fund documents lies with the manager.

There are no minimum capitalisation norms applicable to managers. However, it is mandatory that the key investment team of the manager has adequate experience and relevant qualifications as provided for under the AIF Regulations (see 2.8 Other Local Requirements), with at least one key personnel having not less than five years’ experience advising or managing pools of capital.

Additionally, the manager and the sponsor of the fund (often one and the same entity) are required to have the necessary infrastructure and manpower to undertake their activities. The manager and sponsor must also qualify as “fit and proper persons” under SEBI (Intermediaries) Regulations, 2008. The criteria for such qualification include evaluation of:

  • integrity, reputation and character;
  • absence of convictions and restraint orders;
  • competence, including financial solvency and net worth; and
  • absence of categorisation as a wilful defaulter.

The sponsor of an AIF has to invest a minimum amount as sponsor commitment (see 2.3 Regulatory Regime). Furthermore, the minimum corpus of an AIF must be INR200 million.

The scheme of the AIF Regulations suggests that foreign entities cannot act as managers to AIFs. Foreign entities may, however, provide non-binding investment advice to AIFs/managers by way of establishing a subsidiary in India and registering with SEBI as an investment adviser under SEBI regulations governing investment advisers.

Both domestic and foreign investors may invest in AIFs in India. Investors typically include HNWIs, family offices, pension and insurance funds, institutional investors and banks. The flow of capital from development finance and multilateral institutions seems to have been steady over the past few years. Sovereign or quasi-sovereign wealth funds have also been active investors. 

Certain domestic investors, such as banks, insurance companies and pension companies, are governed by their respective regulations and the relevant regulator has prescribed certain limitations on investments by these domestic investors. For example, banks cannot invest more than 10% of the unit capital of a Category I or II AIF without the approval of the RBI, and cannot invest in a Category III AIF. However, the subsidiary of a bank may make an investment in a Category III AIF, subject to the limits prescribed by SEBI. Similarly, while pension companies and insurance companies may invest in Category I and II AIFs, certain prudential norms are prescribed by the relevant pension and insurance regulators on investments by these companies. 

Pursuant to an amendment in August 2021, SEBI has introduced an “Accredited Investor” regime. An Accredited Investor is an investor who/which receives a certificate of accreditation from an accreditation agency and fulfils certain minimum prescribed net worth and/or income criteria. In order to be eligible for the certificate of accreditation, an Accredited Investor has to fulfil the following criteria: 

  • if the investor is an individual/HUF (Hindu undivided family)/sole proprietorship/family trust, then it has to:
    1. have an annual income of at least INR20 million; or
    2. have a net worth of at least INR75 million, of which at least INR37.5 million is in the form of financial assets; or  
    3. have an annual income of INR10 million and a net worth of INR50 million, of which at least INR25 million is in the form of financial assets; or
  • if the investor is a body corporate or a trust other than a family trust, it has to have a net worth of at least INR500 million; or
  • if the investor is a partnership firm, then each of its partners must fulfil the criteria applicable to "individuals". 

The central and state government of India and any development agencies/funds set up by them, qualified institutional buyers, Category I Foreign Portfolio Investors, sovereign wealth funds, multilateral agencies and any other entities specified by SEBI, will automatically be deemed to be Accredited Investors and do not require a certificate of accreditation.  

A Large Value Fund for Accredited Investors may be formed, subject to the condition that each of its investors (except the manager, sponsor, employees/directors of the AIF, and employees/directors of the manager) is an Accredited Investor and each of them commits a minimum of INR700 million. 

AIFs can be marketed by way of private placement through issuance of a PPM, to any person or entity in or outside India, subject to the limitation that they cannot have more than 1,000 investors. At present, there are no specific rules defining the scope of private placement. Managers must seek legal advice in this regard.

Under the (Indian) Companies Act, 2013, any offer or invitation to subscribe to shares made by an Indian company to more than 200 persons in the aggregate financial year is considered as a public offer. This applies to AIFs set up as companies.

Furthermore, as mentioned above, no scheme of an AIF can have more than 1,000 investors.

See 4.2 Marketing of Alternative Funds.

See 4.1 Types of Investor in Alternative Funds.

AIFs that receive foreign investments from persons resident outside India are required by the RBI to file a form (Form InVi) to disclose the foreign investment.

AIFs that receive foreign investments and/or AIFs that have made overseas investments, are required to submit a report on their foreign liabilities and assets ("FLA Reporting") by 15 July of every year. This has been streamlined by the RBI and can be done on a web-based online reporting portal.

The AIF Regulations do not require any disclosures to be made by investors. However, all investors investing in an AIF must comply with KYC norms.

Investors in India are taxed based on their legal structures and different tax rates are applicable to corporations, partnerships and individuals.

AIFs in India have been accorded a statutory tax pass-through status for all streams of income other than business income, ie, investors in an AIF are taxed as if they have invested directly in portfolio companies. See 2.11 Tax Regime. The only requirement is that an AIF must withhold tax from distributions to its investors, as follows:

  • for resident investors, a rate of 10% on all income payable (other than business income); and
  • for non-resident investors, the rates in force (ie, the rates specified in the income tax law for the relevant year or the rates specified in the applicable DTAA entered into between India and the country of residence of such non-resident) as applicable on all income payable (other than business income).

As part of various ongoing tax and regulatory developments around the globe, eg, information exchange laws such as the Foreign Account Tax Compliance Act (FATCA) and the Common Reporting Standard (CRS), there are now additional investor and counterparty account-related due diligence requirements for financial institutions. With the intention of increasing tax transparency and the automatic exchange of financial account information for tax purposes, the government of India recently signed the following agreements:

  • the Intergovernmental Agreement with the government of the USA to implement FATCA; and
  • the Multilateral Competent Authority Agreement to implement the CRS for automatic exchange of information as laid down by the OECD.

To give effect to these agreements, the Indian tax authorities have instituted rules which require Indian financial institutions to seek additional personal, tax and beneficial owner information and certain certificates and documents from all investors. In relevant cases, information will have to be reported to the tax authorities/appointed agencies.  

AIFs are considered to be financial institutions for these purposes and, therefore, investors in AIFs are required to comply with the request of AIFs to furnish such information, documentation and declarations as and when deemed necessary by the AIFs. FATCA and CRS provisions are relevant not only at the on-boarding stage for investors but also throughout the life cycle of investment with AIFs. Investors are therefore required to intimate to the AIFs/managers any change in their status with respect to any FATCA or CRS-related information/documentation provided by them previously, including any declarations provided in respect of the residency of the investors for tax purposes.

Trilegal

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Mumbai
400 013
India

+91 22 4079 1000

+91 22 4079 1098

ganesh.rao@trilegal.com www.trilegal.com
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Law and Practice

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Trilegal was founded in 2000 and has rapidly become a top-tier, full-service law firm with over 450 lawyers led by more than 65 partners. The lawyers are equipped with both local insight and expertise, ensuring that they deliver cost-effective, deal-oriented and high-quality legal advice. Trilegal has represented clients in some of the most complex and high-value transactions in India from its offices in Mumbai, New Delhi, Bangalore and Gurgaon. Its areas of expertise include investment funds and asset management, capital markets, M&A, strategic alliances and joint ventures, private equity and venture capital, banking and finance, restructuring, dispute resolution, regulatory, real estate, and taxation. The firm has incorporated a number of international best practices into its operations and its client roster includes leading global corporations and fund sponsors. The Trilegal asset management and funds team has previously acted as GP counsel for funds raised by established GP houses such as Morgan Stanley, Apollo, Brookfield, ICICI, Kotak and Edelweiss. The team has also acted as LP counsel for marquee investors such as International Finance Corporation, FCDO, Ontario Teachers’ Pension Plan, Australian Super, Asian Development Bank, New Development Bank, NIIF and SIDBI.

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