INDIAN JOURNAL OF LEGAL REVIEW [IJLR] Published by

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ROUND TRIPPING - INDIAN DILEMMA AND INTERNATIONAL PERSPECTIVE

Author - SURYA SRIRAM, STUDENT AT BENNETT UNIVERSITY

Best Citation - SURYA SRIRAM, ROUND TRIPPING - INDIAN DILEMMA AND INTERNATIONAL PERSPECTIVE,
Indian Journal of Legal Review (IJLR), 3 (2) of 2023, Pg. 10-17, APIS – 3920 – 0001 & ISSN - 2583-2344.

Abstract

Round-tripping is a phenomenon where funds are routed back to their country of origin
through various mechanisms, often to take advantage of tax benefits and other regulatory
arbitrage. In India, round-tripping has been a persistent issue, with significant implications for
the economy, financial stability, and credibility of the financial sector. This law research paper
provides a comprehensive analysis of round-tripping from an Indian perspective and explores
international perspectives on the issue. The paper examines the legal and regulatory
framework governing round-tripping in India and highlights the challenges faced by
policymakers and regulators in addressing the issue. The research paper illustrates several
measures taken to curb round-tripping, including relaxation of the existing restrictions on
overseas direct investment (ODI) and foreign direct investment (FDI) by Indian parties and the
adoption of a coordinated global approach to combat round-tripping.

Introduction: economy. The issue of round-tripping is not new

in India and has been prevalent for many years.
“Round tripping of funds is a problem because
The Reserve Bank of India (RBI) has been
it distorts economic statistics, deprives
tracking this issue since the 1990s, and it was
countries of tax revenue, and undermines the
only in 2004 that the government introduced
credibility of the international financial system.”
measures to curb this practice. However,
- The World Bank despite these measures, round-tripping
continues to be a major concern.
Round-tripping is a practice that has been a
major concern for the Indian economy in recent One of the primary reasons for the prevalence
years. This phenomenon involves routing of of round-tripping in India is the complex tax
funds through offshore entities to avail tax system. India's tax laws are complex and often
benefits and subsequently re-investing the confusing, which makes it easy for individuals
same in India. This results in a circular flow of and companies to take advantage of loopholes.
funds, often leading to an artificial inflation of Additionally, India has a high corporate tax rate,
share prices and an increase in foreign which incentivizes companies to route their
investments. The complexity of this issue is funds through offshore entities to avoid paying
further compounded by its international taxes.
implications.
Furthermore, the lack of transparency and the
The Indian government has implemented ease of setting up shell companies also
various measures to curb this practice, but it contribute to the prevalence of round-tripping
continues to be a major concern for the Indian in India. The ease with which shell companies

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can be established makes it difficult for Backdrop to Recent Developments of

authorities to identify the ultimate beneficial Regulations:
owner of the funds. This lack of transparency
As mentioned earlier, in 2004, the Indian
also makes it easier for individuals and
government introduced several measures to
companies to engage in illegal activities such
curb the practice of round-tripping, which had
as money laundering and terrorist financing.
become a major concern for the Indian
The impact of round-tripping on the Indian economy. These measures were aimed at
economy is significant. It leads to an artificial reducing the incentives for companies to route
inflation of share prices, which can have a their funds through offshore entities to avoid
negative impact on the stock market. paying taxes and at improving transparency in
Additionally, round-tripping leads to a loss of the financial sector. Some of the key measures
tax revenue for the government, which could introduced in 2004 are as follows; Introduction
have been used for development projects. of transfer pricing regulations; Restrictions on
Furthermore, round-tripping distorts foreign the use of participatory notes; Introduction of
investment inflows, making it difficult for anti-avoidance rules; Enhanced reporting
policymakers to accurately assess the true requirements for foreign investments; Increased
state of the economy. penalties for non-compliance. The measures
introduced in 2004 primarily included the
Round-tripping is not just an issue that affects
introduction of transfer pricing regulations and
India; it is a global phenomenon. Many
anti-avoidance rules. The Transfer Pricing
countries around the world are grappling with
Regulations were introduced under Section 92
the impact of round-tripping on their respective
of the Income Tax Act, 1961, in 2001 to ensure
economies. The need for international
that related party transactions are conducted
cooperation and coordination to tackle this
at arm's length. The regulations require
issue has become increasingly evident.
companies to maintain contemporaneous
Several measures have been implemented documentation and submit it to the tax
globally to combat the issue of round-tripping. authorities. The Anti-Avoidance Rules were
For example, the Organization for Economic Co- introduced under Section 96 of the Income Tax
operation and Development (OECD) has Act, 1961, in 2004 to prevent companies from
developed a framework to prevent base erosion engaging in aggressive tax planning and
and profit shifting (BEPS). This framework aims exploiting tax loopholes. These measures were
to prevent companies from exploiting tax aimed at curbing the practice of round-tripping
loopholes and shifting profits to low-tax and improving transparency in the financial
jurisdictions. sector. Although these measures were a step in
the right direction, they were not sufficient to
Furthermore, the Financial Action Task Force
completely eradicate the issue of round-
(FATF) has developed international standards to
tripping. The prevalence of round-tripping in
combat money laundering and terrorist
India continues to be a major concern, and
financing. These standards require countries to
policymakers are exploring additional measures
implement measures to identify and prevent
to address this issue.
the misuse of legal persons and arrangements,
including shell companies. The regulatory strategy in India up until very
recently attempted to limit foreign investments
This paper is an attempt to understand the
made in India by round tripping. In no Indian
dilemma regarding the evolving concept of
legislation is the idea of round tripping defined
roundtripping, especially in the context of recent
or specified. However, any investment made by
regulations and understanding the same with
an Indian party outside of India with the
international perspectives.

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intention of sending the money back to India is hinders monitoring and enforcement as well.” –
completely prohibited, according to an FAQ Former SEBI Chairman, Ajay Tyagi8
published by RBI in May 20196 where a question
In the context of tax avoidance, Indian
on Foreign Exchange Management (Transfer
companies have implemented various
or Issue of Any Foreign Security) Regulations,
strategies, including the establishment of
2004 expressed that Indian Parties are
offshore group companies in tax havens to
restricted from setting up Indian subsidiaries
direct funds through them. This approach
through its Wholly Owned Subsidiary (“WOS”) in
involves undervaluing exports or overvaluing
foreign territory or Joint Venture (“JV”). Further,
imports to exhibit higher costs and lower profits,
the provisions of the above regulation do not
leading to decreased income tax payments to
permit acquisition of a WOS or investments in a
the government. The offshore group entities
JV by Indian Party that already has investments
then return the funds to India as foreign direct
in India under the automatic route . In such a
investment or foreign portfolio investment,
scenario the option left for the party is to get
taking advantage of the advantages offered by
prior approval by RBI through the party’s
double tax avoidance agreements for specified
Authorized Dealer Banks. Such approvals are
jurisdictions, such as exemption from capital
granted after assessment of merits of the case
gains tax, allowing unreported money to enter
which is done on a case-to-case basis.7
India without paying taxes. According to the
The Ministry of Finance and RBI introduced a Sowmiyanarayanan & Ors. v. SEBI9 case, the
new overseas investment regime in 2022 remitted funds have been exploited to
comprising of Foreign Exchange Management manipulate the stock prices of Indian entities
(Overseas Investment) Rules, 2022 (“OI Rules, listed on the stock exchange.
2022”), Foreign Exchange Management
The DITEG's Issues Paper10 13 on Round Tripping
(Overseas Investment) Regulations, 2022 and
by the IMF Committee on Balance of Payments
Foreign Exchange Management (Overseas
Statistics and the OECD Workshop on
Investment) Directions, 2022 suppressing old
International Investment Statistics highlighted
Regime comprising of the Foreign Exchange
two types of FDI flows that are considered
Management (Transfer or Issue of Any Foreign
Round Tripping from the host country's
Security) Regulations, 2004 and the Foreign
perspective. These include domestic investment
Exchange Management (Acquisition and
that is disguised as foreign investment through
Transfer of Immovable Property Outside India)
non-resident SPEs (Special Purpose Entities)
Regulations, 2015.
and channeling of FDI funds through local SPEs.
The former involves Company A from the host
economy providing FDI funds to a nonresident
Round Tripping Structures and its Regulations:
SPE (Company B) to invest in Company C in the
“Use of complicated group structures and host economy, while the latter involves
complex related-party transactions increase Company A’ in economy X channeling FDI funds
the concern on siphoning of funds, money to Company C’ in the same economy via an SPE
laundering, round tripping etc., while such in the host economy (Company B’).
structures and transactions happen at a cross-
country level, the lack of free information flow
8 “Adani Group: How The World’s 3rd Richest Man Is Pulling The Largest Con In
Corporate History”, HINDENBURG RESEARCH (2023),
6 Pritha Jha and Mamta Jain, The Dilemma Around Round Tripping, LIVE LAW, https://hindenburgresearch.com/adani/ (last visited 10-04-2023)
(10-04-2023, IST 21:25 Hrs) https://www.livelaw.in/law-firms/law-firm- 9 2017 SCC OnLine SAT 108

articles-/foreign-direct-investment-foreign-action-task-force-rbi-pioneer- 10 “Issues Paper (DITEG) # 13 Round Tripping”, IMF COMMITTEE ON

legal-216692 BALANCE OF PAYMENTS STATISTICS AND OECD WORKSHOP

7 “Frequently Asked Questions on Overseas Direct Investments”, RBI (2019), ON INTERNATIONAL INVESTMENT STATISTICS,
https://taxguru.in/rbi/faqs-overseas-direct-investments.html (last visited 10- https://www.imf.org/external/np/sta/bop/pdf/diteg13.pdf (last visited 10-
04-2023) 04-2023).

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Furthermore, the courts in the New Delhi worth of the foreign entity, and no additional FDI
Television Limited v. Deputy Commissioner of being directly or indirectly from India.
Income Tax11 and Vodafone International
Moreover, foreign JVs or WOS of Indian parties
Holdings BV v. Union of India and Anr. 12 cases
should be permitted to undertake FDI in India for
regarded all forms of "round tripping"
legitimate business purposes under the
arrangements as negative and deemed them
Automatic Route, provided that the total value
as "abuse of treaty for the fraudulent purpose of
of FDI does not exceed 25% of the overseas
evading taxes."13
entity's consolidated net worth, which should be
HLAG Recommendations: at least USD 10 million.

In the light of the issues and views highlighted in Lastly, companies listed overseas in Financial
the above section, a report 14
by the High-Level Action Task Force (FATF) jurisdictions, with a
Advisory Group (HLAG) on Trade under Ministry certain market capitalization, should be
of Commerce & Industry provided permitted to invest in India, irrespective of its
recommendations in relation to Round Tripping shareholding being held by persons resident in
and laid down the cases that should not be India. These recommendations will help address
considered as round tripping or violation of ODI the issue of round-tripping of funds while
Regulations. A brief summarization of these is promoting legitimate business activities.
provided in this section.
The Dilemma:
In its current form, the Foreign Exchange
The new OI Rules includes an express provision
Management Act (FEMA) prohibits foreign direct
dealing with round tripping under Rule 19(3):
investment (FDI) in an Indian party's overseas
joint venture (JV) or wholly-owned subsidiary “No person resident in India shall make
(WOS) without prior approval from the Reserve financial commitment in a foreign entity that
Bank of India (RBI). However, the RBI's strict has invested or invests into India, at the time of
stance on outbound direct investment (ODI) making such financial commitment or at any
entities in FDI structures has adversely affected time, thereafter, resulting in a structure with
certain Indian companies' ability to attract FDI in more than two layers of subsidiaries.”15
India, even for legitimate business purposes.
Why the threshold for determining 2 layers is so
To mitigate this issue, the ODI Regulations low, or why the layering has been restricted to
should be relaxed, allowing overseas JVs or only 2 levels has not been expressed in the
WOS of Indian parties to engage in fresh FDI or regulations. What does this entail for India and
Indian entities to undertake ODI in a foreign the investors making investments in India
entity with existing FDI investment structures in through such structures?
India under the Automatic Route, subject to
The Revised Framework allows for a specific
specific conditions. The recommended
number of subsidiary layers, in line with the
conditions include a total value of existing FDI
Companies Act, 2013. However, it is unclear how
not exceeding 25% of the consolidated net
the permissible layers will be computed. The
calculation can be based on the Indian entity,
11 2020 SCC OnLine SC 446
12 2012 SCC OnLine SC 77 where its step-down subsidiary is considered
13 Rajat Sethi and Samyak Jain, India: Liberalized Rules For Overseas Investment By
the second layer. Alternatively, it can be
Indian Entities: Laying The "Round Tripping" Ghost To Rest (Or Not Just Yet),
MONDAQ, (10-04-2023, IST 21:25 Hrs) determined based on the foreign entity, which
https://www.mondaq.com/india/financial-services/1259012/liberalized-
rules-for-overseas-investment-by-indian-entities-laying-the-round-tripping- would include a Subsidiary Downstream of the
ghost-to-rest-or-not-just-yet
14 “Report of the High-Level Advisory Group”, MINISTER OF COMMERCE
foreign entity. While Rule 2(1)(y) defines
AND INDUSTRY (2019), https://commerce.gov.in/wp-
content/uploads/2020/02/NTESCL637084602888237192_HLAG-Report-
.pdf (last visited 10-04-2023) 15 Foreign Exchange Management (Overseas Investment) Rules, 2022

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"subsidiary" to include a step-down subsidiary and asset valuation through shell companies.
of a foreign entity, implying that the number of These shell companies are of 2 types:
permitted subsidiaries should be determined
1. One stack is an ‘industrial shell stack’ that
with respect to the foreign entity that receives
buys capital assets such as machinery from
the financial commitment, the RBI Master
market and sells to listed Adani companies
Directions on Reporting seems to require
such as Adani Enterprises, Adani Ports at
information on all step-down subsidiaries of the
inflated prices. These shell companies are
relevant foreign entity.
managed by the Adani family themselves.
The Revised Framework defines "subsidiary" or
2. The excess (inflated) money received in stack
"step-down subsidiary" of a foreign entity as "an
1 shell companies is siphoned to stack 2 shell
entity in which the foreign entity has control,"
companies or ‘investment shell stack' which
with "control" defined as "the right to appoint the
'invest back' in the listed Adani companies.
majority of directors or to control management
or policy decisions exercised by a person or Allegedly, the Adani group has at least 38 shell
persons acting individually or in concert, directly companies based out of Mauritius, Cyprus,
or indirectly, including by virtue of their Caribbean, UAE and Singapore. It was argued to
shareholding or management rights or be a big deal as round tripping gives a
shareholders' agreements or voting perception of economic growth (because every
agreements that entitle them to 10% or more of company in the process gets to record revenue
voting rights or in any other manner in the without any real growth or value). This
entity." This is significantly lower than the 10% perception increases the market value of the
threshold for voting rights specified in the listed Adani companies. Because the market
Companies Act, 2013, for identifying a value keeps on increasing, so does the net
subsidiary. worth of Gautam Adani and his family. They
then pledge their own shares to financial
It is worth noting that while the OI Rules define
institutions to secure more debt from them.
"subsidiary" or "step-down subsidiary"
specifically in the context of a foreign entity, International Perspective:
paragraph IX of Form MC under the RBI Master
Now, it is pertinent to understand the
Directions on Reporting requires disclosure of
international perspective in the light globalized,
whether the Indian entity has "control" in the
interconnected and interdependent world
foreign entity, as per the definition under the OI
economy. For this, the following documents,
Rules.
reports of the prominent world institutions are
Recent Pricks about Round Tripping Adani’s used as authorities to understand the same.
Exposé:
The IMF Committee's DITEG has released an
The Adani Group has 7 publicly listed Issues Paper17 regarding round tripping and the
companies and 578 subsidiaries, largely need for more accurate recording of FDI
controlled and managed by his family. These statistics. The paper raised several important
companies held a market value of $200 billion. questions, including whether both types of
Further, Gautam Adani’s net worth increased round tripping should be excluded from FDI
from $20 billion in 2018 to $120 billion in 2022. In statistics for the host economy. Additionally, the
a recent report16 released by Hindenburg paper discussed whether survey work should
Research Organization reveled that such a focus only on investment groups that are
growth was primarily facilitated by the process conducive to round tripping, and whether the
of round tripping that manipulated stock prices suggested rule of recording for round tripping

16 Supra Note 3 17 Supra Note 4

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funds is appropriate. Furthermore, the paper investment (FDI) in the People’s Republic of
addressed whether all components of direct China (PRC), including its causes and
investment capital should be covered under implications. According to the study, the
round tripping funds and whether it is estimated percentage of round-tripping FDI in
appropriate to allow the recording of different the PRC is higher than previous estimates, with
components for opposite FDI flows. Lastly, the a likely ratio of around 40%. This means that the
paper examined whether there are other inflow of FDI to the PRC is exaggerated, and the
structures of direct investment groups that are country's capital flight is more significant than
also conducive to round tripping. The Issues its FDI inflows. However, this does not have a
Paper is an important contribution to the significant impact on efficiency or resource
discussion on FDI statistics and highlights the allocation. The study suggests that the PRC's
need for accurate reporting in this area. weak institutions for protecting property rights
and its strong capacity for creating new capital
The World Bank’s Policy Research Working Paper
have contributed to sustained and substantial
804618 focuses on FDI round tripping in the case
capital flight and round-tripping FDI.
of India and the role Mauritius has played in its
Additionally, the research paper suggests that
FDI inflows. The paper finds that around 10% of
the control on the PRC's cross-border capital
India's FDI inflows over the last decade can be
flows is much looser than previously believed,
attributed to round tripping through Mauritius,
with a significant amount of overseas Chinese
which has been used by Indian companies for
capital. These findings may have implications
tax evasion and, in some cases, money
for the PRC's exchange control, capital account
laundering. The paper cites the 1983 Double
liberalization, exchange rate policies, and
Taxation Avoidance Agreement between India
international relations with the U.S., Japan, and
and Mauritius as the reason for this, which
Asia. However, the study focuses only on the
allowed only Mauritius to tax capital gains
round-tripping issue and leaves policy
arising from sales of shares of an Indian
implications and other related conceptual and
company by a resident of Mauritius. However,
empirical issues for future research.
since Mauritius does not tax capital gains,
Indian companies based in Mauritius could Some country-specific international
avoid taxation in both jurisdictions. The perspectives on round-tripping:
estimated annual cost of round tripping of FDI
i United States:
to India, in terms of loss of tax revenue, is
The United States has strict laws to curb
approximately $600 million. In 2016, the two
round-tripping, such as the Foreign Account
countries signed an amendment to the treaty
Tax Compliance Act (FATCA) (26 U.S.C. §§
aimed at curbing tax evasion and the resulting
1471-1474). FATCA requires foreign financial
welfare losses. The Working Paper highlights the
institutions to report the assets held by US
need to address FDI round tripping and its
citizens to the US Internal Revenue Service
impact on tax revenue, particularly in
(IRS)20. Additionally, the US government has
developing economies.
enacted the Stop Tax Haven Abuse Act (H.R.
The ADB Institute Research Paper examines the 19
1554)21 to prevent individuals from avoiding
effects of round-tripping foreign direct US taxes by routing their funds through
offshore destinations.

RESEARCH PAPER SERIES NO. 58 (2004),

18 Dilek Aykut, Apurva Sanghi and Gina Kosmidou, Policy Research Working https://www.adb.org/sites/default/files/publication/157240/adbi-rp58.pdf
Paper on What to Do When Foreign Direct Investment Is Not Direct or Foreign FDI (last visited 10-04-2023).
Round Tripping, WORLD BANK (2017), 20 Foreign Account Tax Compliance Act (FATCA), INTERNAL REVENUE

https://documents1.worldbank.org/curated/en/319451493385113949/pdf/ SERVICE, https://www.irs.gov/businesses/corporations/foreign-account-

WPS8046.pdf (last visited 10-04-2023) tax-compliance-act-fatca (last visited 10-04-2023)
19 Xiao Geng, Round-Tripping Foreign Direct Investment and the People’s Republic of 21 https://www.congress.gov/bill/110th-congress/senate-bill/681 (last
China, ADB INSTITUTE visited 10-04-2023)

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ii China: The research paper highlights the practice of

In China, the government has taken round-tripping in the Indian financial sector,
measures to prevent round-tripping by which involves the routing of funds from India to
tightening its foreign exchange controls. The foreign countries and then back to India
State Administration of Foreign Exchange through shell companies, with the intent of
(SAFE) oversees the management of foreign evading taxes and other regulatory measures.
exchange in China and requires all The practice has been a significant challenge
transactions over a certain threshold to be for the Indian government, as it results in
reported to them. Additionally, the revenue losses and undermines the credibility
government has also established the China of the financial sector. Through a range of
Banking Regulatory Commission (CBRC) to measures introduced in 2004, including
supervise the banking sector to ensure changes to tax laws and the introduction of
compliance with regulations. regulatory mechanisms, the Indian government
iii Singapore: has attempted to curb the practice of round-
Singapore has been historically known as a tripping. These measures have been partly
destination for round-tripping due to its tax- successful in reducing the prevalence of round-
friendly policies. However, the government tripping but have not completely eliminated it.
has taken steps to combat this practice by
From an international perspective, round-
implementing the Common Reporting
tripping is not unique to India and has been a
Standard (CRS)22 [Income Tax Act (Chapter
challenge for many countries. However, the
134)] and the Exchange of Information (EOI)
Indian experience provides important lessons
regime. The CRS requires financial
and insights for other countries facing similar
institutions to report the assets held by
issues. It highlights the importance of having a
foreign account holders to their respective
strong regulatory framework, effective
governments. Additionally, the Monetary
enforcement mechanisms, and a culture of
Authority of Singapore (MAS) has
transparency and accountability in the financial
established strict regulations to prevent
sector.
money laundering and terrorism financing.
iv United Kingdom: Therefore, the conclusion of the research paper
The United Kingdom has enacted the is that while the measures introduced by the
Criminal Finances Act 2017 (CFA) (c.22) Indian government have helped to address the
which makes it a criminal offence to issue of round-tripping, there is still a need for
facilitate tax evasion. The law applies to more robust and effective enforcement
individuals and corporations who fail to mechanisms to completely eliminate the
prevent their employees, agents, or other practice. Additionally, other countries can learn
associated persons from facilitating tax from the Indian experience and implement
evasion. Additionally, the UK government similar measures to address the issue of round-
has implemented the Automatic Exchange tripping and ensure the transparency and
of Information (AEI) system (International accountability of their financial sectors. In
Tax Compliance (Client Notification) summary, the issue of round-tripping highlights
Regulations 2016) which requires financial the need for constant vigilance and reform in
institutions to report the assets held by the financial sector to ensure that it operates in
foreign account holders to the UK tax a transparent and accountable manner, which
authorities. is essential for sustainable economic growth.
Conclusion:
In conclusion, round-tripping is a practice that
has significant implications for the Indian
economy and the global economy. The
22 https://sso.agc.gov.sg/SL/ITA1947-S621-2016 (last visited 10-04-2023)

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prevalence of this practice highlights the need manufacturing firms. Journal of Economic
for a simpler and more transparent tax system, Studies, 44(2), 246-259.
as well as measures to prevent the misuse of 11. Gupta, N., & Mukherjee, D. (2017). Round-
legal persons and arrangements. Additionally, tripping of FDI in India: How to Interpret
international cooperation and coordination are Evidence. Margin: The Journal of Applied
essential to effectively combat this issue. By Economic Research, 11(3), 332-352.
implementing effective measures to combat 12. Kumar, A. (2018). Round-Tripping of Foreign
round-tripping, policymakers can ensure that Direct Investment in India: Causes,
the Indian economy and the global economy Consequences and Policy Options. Journal
continue to grow and thrive. of Economic Issues, 52(4), 1039-1059.
13. Mehta, S. (2021). Round-tripping of funds: An
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