Section VI

Registration & Prior Permission

Section VI

Question 60

How does a ‘person’ obtain permission to accept FC?   

Answer: Section 11 of FCRA, 2010 inter alia provides as under:

 “(1) Save as otherwise provided in this Act, no person having a definite cultural, economic, educational, religious or social programme[1] shall accept foreign contribution unless such person obtains a certificate of registration from the Central Government:

……………….

(2) Every person referred to in sub-section (1) may, if it is not registered with the Central Government under that sub-section, accept any foreign contribution only after obtaining the prior permission of the Central Government and such prior permission shall be valid for the specific purpose for which it is obtained and from the specific source:”

 Therefore, there are only two modes of obtaining permission to accept foreign contribution‒

  • Registration
  • Prior Permission

Section 11 of FCRA 2010 stipulates that the ‘person’ intending to receive foreign contribution should have a definite cultural, economic, educational, religious or social programme to be eligible to have registration or prior permission under the Act.  In other words, a ‘person’ not having such a ‘definite’ programme cannot have registration or prior permission under the Act. In this context, please refer to the reply to Q. 54.

Please note that accepting or utilising FC in contravention of section 11 of the Act is an offence and would attract a penalty of Rs. 1 lakh or 30% of the FC received or utilised, whichever is higher vide answer to Q. 228.

 

[1] What constitutes a ‘definite cultural, economic, educational, religious or social programme’ has not been defined either in FCRA or FCRR. In this context, please refer to the reply to Q. 125.

Question 61

What are the eligibility criteria for grant of registration?

Answer: As per Rule 9(1)(f)[2] “A person seeking registration under clause (b) of sub-section (4) of section 12 of the Act shall meet the following conditions, namely: –

(i) it shall be in existence for three years and have spent a minimum amount of rupees fifteen lakh on its core activities for the benefit of society during the last three financial years:

Provided that the Central Government, in exceptional cases or in cases where a person is controlled by the Central Government or a State Government may waive the conditions;

(ii) if the person wants inclusion of its existing capital investment in assets like land, building, other permanent structures, vehicles, equipment in the computation of its spending during last three years, then the chief functionary shall give an undertaking that the assets shall be vested henceforth with the person till the validity of the certificate and they shall be utilised only for the activities covered under the Act and the rules made thereunder and shall not be diverted for any other purpose till the validity of its certificate of registration remains valid.”

As per Form FC-3A for submission of an application for registration, the applicant should also submit audited statement of accounts and activity report of the Association for the last three years to substantiate that it meets the financial parameter.

 

[2] Clause (f) under Rule 9(1) has been inserted vide Foreign Contribution (Regulation) Amendment Rules, 2020 [G.S.R. 695(E) dated 10th November, 2020].

 

Question 62

What kind of documentary evidence is required to prove the existence of an Association for at least 3 years?

Answer: As per Rule 9(1)(f) of FCRR, 2011, an application for certificate of registration by a person/Association under of section 11(1), for acceptance of foreign contribution shall be made in electronic form in Form FC-3A with an affidavit executed by each office bearer and key functionary and member in Proforma ‘AA’. The form FC-3A seeks the details of registration of the Association under the heads, Name of the Act, (i.e., the Societies Registration Act, 1860, the Indian Trust Act, 1882, the Companies Act, 1956 and the Companies Act, 2013 etc.); number, date and place of registration with self-certified copy of such registration as documentary evidence of its physical existence for 3 years or more. The date of registration under any of these Acts would be considered as the date of its formation.

Question 63

Could registration be given to an Association which has not completed 3 years of its existence and/or has not spent Rs.15 lakh over the last three years on its activities by granting exemption?

Answer: The proviso to Rule 9(1)(f) states that the Central Government, in exceptional cases or in cases where a person is controlled by the Central Government or a State Government may waive the conditions.

Question 64

Could an organisation registered in UP under Societies Registration Act have FCRA registration with a Delhi address?

Answer: Organisations registered under the Societies Act or Trust Act etc. in a particular State should seek FCRA registration from that State only.

Question 65

Whether an Association, which has obtained registration under FCRA, 2010 needs to obtain permission of the Government each time it is to receive FC?

Answer: No.  An Association having valid registration under FCRA, 2010 can receive FC from any foreign source subject to the condition that it should not accept FC from any organisation/source banned by MHA.

Question 66

What are the eligibility criteria for grant of prior permission?

Answer: An Association which is not eligible for grant of registration may apply for grant of prior permission under FCRA, 2010. Prior permission is granted for receipt of a specific amount from a specific donor for carrying out specific activities/projects in cultural, economic, educational, religious or social field of activities for which the foreign contribution is proposed to be utilised. The applicant Association should also be registered under an existing statute like the Societies Registration Act, 1860, the Indian Trust Act, 1882, the Companies Act, 1956 and the Companies Act, 2013 etc., as mentioned in the prescribed application Form FC-3B.

As per [3]Rule 9(2)(f) of FCRR, 2011, “A person seeking prior permission for receipt of specific amount from a specific donor for carrying out specific activities or projects mentioned in clause (c) of sub-section (4) of section 12 of the Act shall meet the following criteria, namely :-

(i) submit a specific commitment letter from the donor indicating the amount of foreign contribution and the purpose for which it is proposed to be given;

(ii) for the Indian recipient persons and foreign donor organisations having common members, prior permission shall be granted to the person subject to it satisfying the following conditions, namely: –

 (A)  the chief functionary of the recipient person shall not be a part of the donor organisation;

(B) seventy-five per cent of the office-bearers or members of the governing body of the person shall not be members or employees of the foreign donor organisation;

(C)  in case of foreign donor organisation being a single individual that individual shall not be the chief functionary or office bearer of the recipient person; and

(D)  in case of a single foreign donor, seventy-five per cent of the office bearers or members of the governing body of the recipient person shall not be the family members or close relatives of the donor.”

 

[3] Clause (f) under Rule 9(2) has been inserted vide Foreign Contribution (Regulation) Amendment Rules, 2020 [G.S.R. 695(E) dated 10th November, 2020].

Question 67

Does FCRA, 2010 prescribe any minimum/maximum amount of FC for which an application for the grant of PP can be made?

Answer: No. However, [4]Rule 9A of FCRR, 2010 prescribes that “If the value of foreign contribution on the date of final disposal of an application for obtaining prior permission under clause (a) of sub-rule (1) of rule 9 is over rupees one crore, the Central Government may permit receipt of foreign contribution in such instalments, as it may deem fit:

Provided that the second and subsequent instalment shall be released after submission of proof of utilisation of seventy-five per cent of the foreign contribution received in the previous instalment and after field inquiry of the utilisation of foreign contribution.”

 

[4] Rule 9A has been inserted vide Foreign Contribution (Regulation) Amendment Rules, 2020 [G.S.R. 695(E) dated 10th November, 2020].

 

Question 68

Could an Association seek prior permission for receiving a large amount of FC and after receipt of PP for the same, whether it can receive the FC amount in instalments and whether there is any time limit under FCRA, 2010 by which it should receive the whole amount?

Answer: Yes.  There is no such bar on receiving the FC. However, the aggregate amount should not exceed the specified amount for which PP has been granted. In this context, please refer to the answer to Q. 67 above.

Question 69

An Association seeks and receives prior permission to accept Rs. 1 lakh from a foreign donor and at the time of submission of application, 1 US$ was equivalent to Rs. 50.   However, when it actually receives US$ 2000, an amount of Rs. 1,10,000/- is credited in its account due to change in exchange rate (1 US$ = Rs. 55).  Is that permissible?

Answer: No.  Prior permission is granted for acceptance of a specific amount from a specific donor for carrying out specific activities.  Since the PP was granted for acceptance of Rs. 1 lakh, receipt of the excess amount of Rs. 10,000/- constitutes violation of the Act and would attract penalty as a compoundable offence.  Therefore, Associations seeking prior permission are advised to apply for acceptance of foreign contribution specifying the amount in foreign currency so that any exchange rate fluctuation does not make it liable to any penal action.

Question 70

An Association seeks and receives prior permission to accept FC denominated in foreign currency (say US$ 2,000) from a foreign donor and at the time of submission of application, 1 US$ was equivalent to Rs. 50. However, when it actually receives US$ 2000, an amount of Rs. 1,10,000/-is credited in its account due to change in exchange rate (1 US$ = Rs. 55). Is that permissible?

Answer: Yes. Since the Association receives US$ 2000 as per the approval of MHA, there is no violation.

Question 71

On the basis of a commitment letter from a foreign donor to donate US$ 1000, an Association seeks and receives PP to accept US$1000.  However, the foreign donor donates only US$500 for some reason. Is that permissible?

Answer: Yes. The principle is that the amount of donation should not exceed the specified amount for which prior permission has been granted.

Question 72

Is there any time limit under FCRA, 2010 by which the amount of FC received is to be utilised?

Answer: No. There is no such time limit for utilisation of the FC either in the case of registration or for PP. However, Associations having registration must file the mandatory annual return online in Form FC-4 every year, whether or not they receive any FC during any FY.  As for the Associations having PP, they must submit the mandatory annual return online in Form FC-4 till the amount of FC for which they received the PP is fully utilised and, even if no transaction takes place during any FY, they must submit a NIL return.

Question 73

What is the validity period of registration granted under FCRA 2010?

Answer: FCRA, 2010 has done away with the concept of a permanent registration. A validity period of 5 years from the date of registration has been stipulated for all Associations registered under FCRA, 2010 vide Section 12(6) of the Act. The period of 5 years should be counted from the date, as indicated on the letter granting registration/renewal.

 

Question 74

What is the validity period of prior permission granted under FCRA 2010?

Answer: Prior permission, whether granted under FCRA, 1976 or FCRA, 2010, remains valid till receipt and full utilisation of the amount of FC for the specific purpose for which the permission was/is granted. In other words, PP does not have any specific period of validity and remains valid till receipt and full utilisation of the amount of FC vide Section 11(2) read with Section 12(6) of the Act. All PP holder Associations must file their mandatory annual returns till receipt and full utilisation of the amount of FC for which the PP was/is granted.​

Question 75

What are the conditions to be met for the grant of registration/PP?

Answer: In terms of Sec.12 (4) of FCRA, 2010, the following shall be the conditions for the grant of registration as well as prior permission:

(a)   The ‘person’ making an application for registration or grant of prior permission

(i)   is not fictitious or benami;

(ii) has not been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another;

(iii) has not been prosecuted or convicted for creating communal tension or disharmony in any specified district or any other part of the country;

(iv) has not been found guilty of diversion or mis-utilisation of its funds;

(v)  is not engaged or likely to engage in propagation of sedition or advocate violent methods to achieve its ends;

 (vi) is not likely to use the foreign contribution for personal gains or divert it for undesirable purposes;

(vii)  has not contravened any of the provisions of this Act;

(viii) has not been prohibited from accepting foreign contribution;

(ix)  the person being an individual, such individual has neither been convicted under any law for the time being in force nor any prosecution for any offence is pending against him.

(x)  the person being other than an individual, any of its directors or office bearers has neither been convicted under any law for the time being in force nor any prosecution for any offence is pending against him.

(b)  the acceptance of foreign contribution by the Association/person is not likely to affect prejudicially –

(i)    the sovereignty and integrity of India; or

(ii)  the security, strategic, scientific or economic interest of the State; or

(iii)  the public interest; or

(iv)  freedom or fairness of election to any Legislature; or

(v)  friendly relation with any foreign State; or

(vi) harmony between religious, racial, social, linguistic, regional groups, castes or communities.

(c)  the acceptance of foreign contribution ‒

(i)   shall not lead to incitement of an offence;

(ii)  shall not endanger the life or physical safety of any person.

Question 76

How to file an online application for registration/PP?

Answer: The process is rather simple. The website http://fcraonline.nic.in/ contains the all the sample forms, detailed instructions as to how to fill the forms, documents required to be uploaded in PDF format, size limits of the documents to be uploaded, instructions for scanning the requisite documents and the amount of fee to be paid through online electronic payment gateway etc.  As per Rule 9 of FCRR, 2011, an application for obtaining a certificate of registration under Section 11(1) of FCRA, 2010 is to be made online in Form FC-3A and an application for obtaining prior permission under Section 11(2) of FCRA, 2010 is to be made online in Form FC-3B. The application is to be submitted along with the requisite documents, fee and an affidavit executed separately by each office bearer and key functionary and member in Proforma ‘AA’ and a Declaration and Undertaking, as prescribed in the Form.  Proforma ‘AA’ is also available in MHA’s website.

Question 77

Whether an Association shall have to open a designated bank a/c for receipt of FC before submission of its application for registration or prior permission?

Answer: Yes.  All Associations applying for registration or PP are required to open an ‘FCRA Account’ in the State Bank of India, New Delhi Main Branch, 11, Sansad Marg, New Delhi-110001 (SBI, NDMB) to receive any FC if they are granted registration or PP later on and furnish details of the account in the prescribed application form. The procedure for opening the FCRA Account in SBI, NDMB has been explained in the Standard Operating Procedure (SOP) issued by MHA on 20/11/2020.

Question 78

What are the details to be provided in the online application for registration (Form FC-3A)?

Answer: The following details are to be furnished in the online Form FC-3A:

(i)        Name & full address of the Association with its telephone no, e-mail ID, official website address, telephone & mobile nos. of the Chief Functionary;

(ii)       Registration number of the Association under an existing statute    including the number, date & place of such registration;

(iii)      PAN (Permanent Account number issued by the IT Deptt.) of the Association;

(iv)      DARPAN ID of the Association;

(v)       [5]Nature of the Association: [(a) religious, (b) cultural, (c) economic, (d) educational, (e) social).  Note: A religious Association has to state whether (a) Hindu, (b) Sikh, (c) Muslim, (d) Christian, (e) Buddhist, (f) Others;

(vi)      Main aim(s) and object(s) of the Association;

(vii)     Details in respect of each office bearer or director or other key functionary, viz., name, name of his/her father/spouse, nationality, Aadhaar Number, PAN, occupation, designation in the Association, inter-personal relationship with other members of the Executive Council/Governing Body/office bearers and contact details including office address, residential address, e-mail ID, landline & mobile numbers;

(viii)    If any of the above functionaries is a foreign national including PIO/OCI card       holder, his/her name, date & place of birth, passport number, address in the foreign country, whether he/she is a person of Indian origin, PIO/OCI card number, if any, and if resident in India, the date from which he/she is residing in India; and

(ix)      Details of designated FCRA Account opened in the State Bank of India, New Delhi Main Branch, 11, Sansad Marg, New Delhi-110001 (SBI, NDMB) to receive any FC if they are granted certificate for registration later on.

(x)       Details of “another FCRA Account”, if any, opened in any other Bank.

Therefore, all these information should be kept handy before one starts filling in the online application form.

Note: (a) The User ID and Password to be created before starting the process of filling up the online form should be carefully preserved as these will be required for all future purposes for accessing the FCRA Online Services.

(b) Please do not change any office bearer indicated at (vii) & (viii) above after submission of the application till such time the same is approved by MHA (FCRA Wing).

(c) Also, please refer to the answers to Q. 84 and Q. 86.

 

[5] Please refer to the reply to Q. 125.

Question 79

What are the documents to be uploaded with the online application (Form FC-3A) for registration?

Answer: The following documents are to be uploaded with the online application:

(i)        *Self-certified copy of Registration certificate/Trust Deed etc. of the  Association (PDF format/Size: 1MB);

(ii)       *Self-certified copy of relevant pages of Memorandum of Association/Articles of   Association/Trust Deed showing aims & objects of the Association (PDF format/ Size: 5 MB);

(iii)      Activity Report indicating details of activities during the Last 3 Years (PDF format/Size: 3 MB);

(iv)      Copies of audited Statement of accounts for the last three years (assets & liabilities, R&P account and I&E statement) clearly reflecting expenditure incurred on aims and objects of the association and on administrative expenditure (PDF format/ Size: 5 MB);

(v)       Affidavit in Proforma ‘AA’ [To be executed by each office bearer and key functionary and member individually on non-judicial stamp paper of Rs.10/- and attested by a Notary Public or 1st Class Magistrate] (PDF/Size: 1MB);

(vi)      Scanned Image of Chief Functionary’s signature [in JPG/JPEG format; Dimension- 140 (Width)*60 (Height); Pixel Size-50 KB (Max.)]; and

(vii)     Scanned Image of the Seal of the Association [in JPG/JPEG format; Dimension-  140 (Width)*60 (Height); Pixel Size-100 KB (Max.)]

Therefore, all the above documents should be prepared and saved in the computer before one starts filling in the online application form. Further, the prescribed application fee of Rs. 10,000/- is to be paid through online electronic payment gateway.

*Note: If the Registration Certificate/Trust Deed is in a regional language, a translated copy (in English), duly notarised and self-certified, should be uploaded.

Question 80

What are the details to be provided in the online application (Form FC-3B) for prior permission?

Answer: The following details are to be furnished in the online Form FC-3B:

(i)        Name & full address of the Association with its telephone no, e-mail ID, official website address, telephone & mobile nos. of the Chief Functionary;

(ii)       Registration number of the Association under an existing statute    including the number, date & place of such registration;

(iii)      PAN (Permanent Account number issued by the IT Deptt.) of the Association;

(iv)      DARPAN ID of the Association;

(v)       [6]Nature of the Association: [(a) religious, (b) cultural, (c) economic, (d) educational, (e) social).  Note: A religious Association has to state whether (a) Hindu, (b) Sikh, (c) Muslim, (d) Christian, (e) Buddhist, (f) Others;

(vi)      Main aim(s) and object(s) of the Association;

(vii)     Details in respect of each office bearer or director or other key functionary, viz., name, name of his/her father/spouse, nationality, Aadhaar Number, PAN, occupation, designation in the Association, inter-personal relationship with other members of the Executive Council/Governing Body/office bearers and contact details including office address, residential address, e-mail ID, landline & mobile numbers;

(viii)    If any of the above functionaries is a foreign national including PIO/OCI card holder, his/her name, date & place of birth, passport number, address in the foreign country, whether he/she is a person of Indian origin, PIO/OCI card number, if any, and if          resident in India, the date from which he/she is residing in India; and

(ix)      Details of designated FCRA Account opened in the State Bank of India, New Delhi Main Branch, 11, Sansad Marg, New Delhi-110001 (SBI, NDMB) to receive any FC if they are granted prior permission later on.

(x)       Details of “another FCRA Account”, if any, opened in any other Bank.

(xi)      Details of commitment of foreign contribution from the donor;

(xii)     Nature of FC, value (including name of currency) of the donation, name of the project/activity, address of implementation with brief details of the project including budget break-up and purpose (cultural/ economic/ educational/ religious/ social);

(xiii)    Details of foreign source(s) from which the FC is proposed to be received, viz., name of foreign source, its office address & official e-mail address and in case of individual donor, the name of his/her father/spouse, nationality and passport number and occupation.

Therefore, all these information should be kept handy before one starts filling in the online application form.

Note: Please refer to the Note below the answer to Q. 78.

 

[6] Please refer to the reply to Q. 125.

Question 81

What are the documents to be uploaded with the online application (Form FC-3B) for prior permission?

Answer: The following documents are to be uploaded with the online application:

(i)        *Self-certified copy of Registration certificate/Trust Deed etc. of the Association (PDF format/Size: 1MB);

(ii)       *Self-certified copy of relevant pages of Memorandum of Association/Articles of Association/Trust Deed showing aims & objects of   the Association (PDF format/ Size: 5 MB);

(iii)      Copy of commitment letter (from the foreign donor) and agreement specifying the amount of foreign contribution (PDF format / Size 5MB);

(iv)      Copy of the project report for which foreign contribution will be received (PDF format / Size 3MB);

(vi)      Affidavit in Proforma ‘AA’ [To be executed by each office bearer and key functionary and member individually on non-judicial stamp paper of Rs.10/- and attested by a Notary Public or 1st Class Magistrate] (PDF/Size: 1MB);

(vii)     Scanned Image of Chief Functionary’s signature [in JPG/JPEG format; Dimension- 140 (Width)*60 (Height); Pixel Size-50 KB (Max.)]; and

(viii)    Scanned Image of the Seal of the Association [in JPG/JPEG format; Dimension- 140 (Width)*60 (Height); Pixel Size-100 KB (Max.)]

Therefore, all the above documents should be prepared and saved in the computer before one starts filling in the online application form. Further, the prescribed application fee of Rs. 5000/- is to be paid through online electronic payment gateway.

*Note: Please refer to the Note below the answer to Q. 79.

Question 82

Is there a specific format for the commitment letter and agreement from the foreign donor that is to be uploaded with the application for PP?  Is it necessary that the applicant Association has to submit original commitment letter on the letter-head of the foreign donor?

Answer: The requirement of furnishing a copy of the commitment letter has been prescribed by MHA in the application Form FC-3B. There is no prescribed format of the commitment letter and agreement. However, it should be ensured that the duly signed commitment letter and agreement contains the nature of FC, specific purpose of the FC, value (including name of currency) of the contribution, name of the project/activity, address of implementation with brief details of the project including budget break-up, specific terms under which the donation is being given by the donor and accepted by the recipient and details of the foreign donor(s) from which the FC is proposed to be received, viz., name of foreign source, its office address & official e-mail address and in case of individual donor, the name of his/her father/spouse, nationality and passport number and occupation. It may also contain any other details that the donor may like to indicate.  An applicant may submit a photocopy of the commitment letter and if the commitment letter has been sent by the foreign donor through e-mail, a copy of thereof.  It is advisable that such letter or e-mail indicating the commitment of the donor is duly authenticated by the person submitting the application.

Question 83

What should be the size of the project report to be submitted with an application for prior permission?

Answer: There is no fixed parameter about the size of a project report.  It need not be a very detailed one; the basic outline indicating the name of the project/activity including address of implementation of the project, objectives of the project, projected outlays, i.e., cost involved, with budget break-ups (in the currency in which the foreign contribution is to be received) would suffice. The size of the project report to be uploaded with the online application should be limited to 3 MB in PDF format. 

Question 84

What other documents should be uploaded with an application for registration or prior permission?

Answer: An Association functioning as editor, owner, printer or publisher of a publication registered under the Press and Registration of Books Act, 1867, should also upload a copy of the certificate from the Registrar of Newspaper for India that the publication is not a newspaper in terms of section 1(1) of the said Act.​

Question 85

Since payment of fee through the online gateway would require a credit/debit card of a bank, is it necessary that the same should be in the name of the Association concerned? Given that the Associations generally do not use any credit/debit card in the name of the organisation, how would an applicant Association pay the fee through the payment gateway in the absence of such a card?

Answer: The applicant Association may use the credit/debit card of any of its functionaries/employees/Chartered Accountant etc. for payment of the fee through the payment gateway. MHA has not put any restriction in this regard.

Question 86

What other points should be borne in mind for submission of an application for registration or prior permission?

Answer: The applicant Association should note that its application for registration or prior permission, as the case may be, should be complete in all respects as the application may be rejected if it is seen that an application is faulty, i.e., incorrectly filled or there is a mismatch between the data filled in the online application and the supporting documents and, if some material information is not furnished.   Further, the applicant Association should not furnish any false data/information or conceal any material fact.  As per Section 33 of FCRA, 2010, submission of any false information, statement, false balance sheet etc. and concealment of material fact for the purpose of fraudulently seeking registration or prior permission is an offence and can lead to imprisonment for a period up to 6 months or with fine or both.

 

Question 87

How to rectify an error in the application for registration/PP or renewal of registration that has already been submitted online?

Answer: There is no scope to rectify any error in the application for registration or prior permission or renewal, as the case may be, after its online submission.  The only option available is to submit another online application in the case of registration or PP.  Therefore, the applicant Associations should be very careful in filling in the details sought during online submission of an application. In case of any error, the Support Centre/Help Desk of MHA (FCRA wing) may be contacted.   However, MHA, in its online portal, may intimate the applicant Association to rectify any shortcoming in the application within a certain period. Therefore, one should regularly check the status of the application in MHA’s website [https://fcronline.nic.in] using the User ID and Password created at the time of filing the application and follow the instructions to rectify the deficiency. Please note that even a slight inadvertent mistake may lead to rejection of an application or may create various problems.​

Question 88

Whether DARPAN ID of the Association is to be mandatorily mentioned in the online application for registration or prior permission?

Answer: Yes.  All the existing Associations having FCRA registration/PP and those who are seeking registration/PP for accepting FC are required to register with DARPAN Portal of NITI Aayog (http://ngodarpan.gov.in) to obtain the Unique DARPAN Identification Number. Following the notification of Foreign Contribution (Regulation) Amendment Rules, 2020 [G.S.R. 695(E) dated 10th November, 2020] and revision of the Forms for various applications, quoting DARPAN ID for FCRA related services has been made mandatory.

Question 89

Whether Aadhaar number of each office bearer or director or other key functionary the of the Association is to be mandatorily mentioned in the online application for registration or prior permission?

Answer: Yes.  As per Section 12A of FCRA, 2010 it is mandatory for Associations to mention the Aadhaar number of each office bearer or director or other key functionary the of the Association in the online application for registration or prior permission or renewal of registration.

Question 90

What is the meaning of the term ‘Chief Functionary’, for the purpose of submitting an application?

Answer: The term ‘Chief Functionary’ has nowhere been defined in FCRA, 2010 or FCRR, 2011.  It is a general expression to mean the head of the organisation or the Chief Executive Officer of an organisation. The organisation may also designate any office bearer as the Chief Functionary through a resolution of its Executive Council/Governing Council/Governing Body/Board of Trustees for the purposes of filing application for Registration or PP or Renewal of registration, Annual Return etc. Please note that for submission of online application for any of these purposes, the system allows uploading the scanned image of the signature of only any of the persons designated as Chief Functionary or Chairperson or President or Secretary or Managing Director. The name and designation of all those eligible to sign comes in a drop-down menu and one has to select one of them and then upload the scanned image of the signature.

Question 91

What is the meaning of the term ‘key functionary’/’key member’, for the purpose of submitting an application and the affidavit?

Answer: The terms ‘key functionary’ or ‘key member’ or ‘office bearer’ have nowhere been defined in FCRA, 2010 or FCRR, 2011.  These terms have been used in various application forms and the affidavit (Proforma ‘AA’). A perusal of the Forms would indicate that the terms refer to the members including the President/Chairman/CEO/Trustees of the Executive Council/Governing Council/ Governing Body/Board of Trustees of any Association/Trust. ​

Question 92

What is the definition of the Executive Council/Governing Body etc. of an Association?

Answer: Executive Council/Governing Body etc. (including Executive Committee, Governing Council/Board, Board of Directors and Managing Committee/Board of Trustees) would mean the body defined under the respective Memorandum, Articles, bylaws, Constitution Document, Trust Deed etc. for governing the Association.

Question 93

Could an ‘artificial person’ be a trustee/member of EC/GB of an Association for the purpose of FCRA?

Answer: No.  It would be clear from the application forms for obtaining registration or prior permission or renewal of registration under FCRA, 2010 that only a natural person (human being) can be a trustee/member of the Executive Council/Governing Body etc. of an Association. However, an individual can be a trustee/member of the EC/GB etc. of an Association as a representative of an organisation, i.e., an artificial person.

Question 94

Could a second application be made within 6 months of submitting an application for registration?

Answer: No vide Rule 9(3) of FCRR, 2011.

 

Question 95

Could a second application be made within 6 months of submitting an application for grant of prior permission?

Answer: In terms of Rule 9(3) of FCRR, 2011, a second application for grant of prior permission for the same project cannot be made within a period of six months after submission of an application.  It implies that a second application for grant of prior permission may be made within 6 months after submission of the first application if it is for a different project.

Question 96

Does an Association require to obtain any recommendation from a District Collector/Dy. Commissioner/District Magistrate or any other agency/Department for getting MHA’s approval of its application for registration/PP? 

Answer: No.

Question 97

Is verification of the antecedents of the Association and its office bearers by the law enforcement agencies mandatory?

Answer: Yes.  Please note that clearance from security angle is obtained by MHA from the concerned Investigating Agencies for granting approval in both the cases of registration and PP. This is done to ascertain whether the applicant Association and its office bearers attract any of the conditions mentioned under Section 12(4) of FCRA, 2010.  Apart from clearance from the concerned Investigating Agencies, security clearance in respect of the donor/donor agency may also be obtained by MHA for considering applications for grant of PP.

Question 98

Is there any restriction under FCRA, 2010 for having relatives in the executive committee/governing body of an Association?

Answer: No. However, having a diverse board may give an organisation more legitimacy and effectiveness in achieving its objectives. Good governance practice requires that the executive members/trustees of an organisation should be unrelated persons. Further, a family run organisation may give the impression that it has been formed and being run for personal gains. Please note that the functioning of any organisation having an executive committee/governing body comprising persons related to each other may not be viewed favourably by the investigative agencies.  This should be avoided to the extent possible.

Question 99

Whether foreigners can be appointed as members of the executive committee or governing body of an Association seeking registration or PP?

Answer: Organisations having foreign nationals, other than of Indian origin, as members, office bearers or trustees including chief functionaries of their executive committees or governing bodies are generally not permitted to accept foreign contribution.  However, foreigners may be allowed to be associated with such Associations in an ex-officio capacity, representing multilateral bodies, foreign contribution from whom is exempted from the purview of FCRA, 2010, or in a purely honorary capacity depending upon the person’s stature in his/her field of activity.  Subject to relaxation given on a case-to-case basis, foreign nationals fulfilling the following conditions may be appointed as executive committee members, after obtaining prior approval of the Central Government:

         (i)     the foreigner is married to an Indian citizen;

         (ii)    the foreigner has been living and working in India for at least five years;

         (iii)  the foreigner has made available his/her specialized knowledge, especially in the medical and health related fields on a voluntary basis in India, in the past;

         (iv)   the foreigner is part of the Board of Trustees/Executive Committee in terms of the provisions in an inter-governmental agreement;

         (v)   the foreigner is part of the Board of Trustees or Executive Committee, in an ex-officio capacity representing a multilateral body which is exempted from the definition of foreign source.

In this context, please refer to the answer to Q. 175 also.

Question 100

Could a foreigner be inducted as a member of the executive committee/ governing body of an Association or trustee of a Trust which has already obtained registration/PP under FCRA?

Answer:Since organisations having foreign nationals, other than of Indian origin, as office bearers or trustees are generally not permitted to receive foreign contribution, it is not advisable to induct a foreigner as an executive member/trustee of an Association/Trust after obtaining registration/PP under FCRA. As mentioned in the reply to the previous question, the organisation should take prior approval of MHA if it becomes necessary to include a foreigner in its EC/GC. The need for such an appointment should be adequately justified.

 

Question 101

FCRA, 2010 does not have any specific provision restricting appointment of foreigners in the executive committee/governing body of an organisation seeking registration or PP. Why such a restriction has been imposed by MHA?

Answer: The restriction has been put by MHA in terms of its internal decision relating to national security. The reply to Q. 175 may also be referred.

Question 102

A section 8 company under the Companies Act, 2013 can also be incorporated without share capital as ‘Company Limited by Guarantee’ and not having Share Capital.   Since no contribution by way of foreign capital would be required, foreign nationals and/or foreign entities can become subscribers to the Memorandum. In that case, for appointment of foreign nationals as Directors and Subscribers, would it be necessary to seek approval under FCRA, 2010? Further, if at any time foreign contribution is sought in that company, whether prior approval under FCRA, 2010 would be necessary?  What would happen to those foreign nationals who are existing Directors in that company?

Answer: If the section 8/section 25 company limited by guarantee does not intend to receive foreign contribution, it may not require the approval of MHA for appointment of foreign nationals as Directors in that company.  However, prior permission under FCRA, 2010 would be necessary if at any time foreign contribution is sought by such a company and it would need to take approval of MHA under FCRA, 2010 to continue with the foreign nationals as Directors in that company.

 

Question 103

Whether Government servants, Judges and employees of a Government owned/controlled company/body can be on the executive committee/board of an Association under FCRA, 2010?

Answer: Yes.  As defined in Section 2(1)(m) of FCRA, 2010, a ‘person’ inter alia includes an ‘individual’. However, the concept of that ‘individual’ is in the context of Section 3 of the Act which prohibits certain persons, who are also individual human beings, from accepting FC. Inclusion of Public Servant in Section 3(1)(c) of FCRA, 2010 in the category of ‘prohibited person’ simply means that a public servant should not accept any FC, not even as honorarium etc. in his personal capacity as a member of any executive committee/board of an Association. The legal entity of a ‘person’ under FCRA, 2010 is distinct from an individual human being. Therefore, Government servants, Judges, and employees of a Government owned/controlled company/body who are prohibited from accepting FC in terms of Section 3 of the Act, may happen to be on the executive committee/board of an Association in their personal capacity subject to the restriction regarding acceptance of any FC.

Question 104

Whether an employee of a newspaper or electronic media can be a member of the executive committee or governing body of an Association under FCRA, 2010?

Answer: As explained in reply to the previous question, the legal entity of a ‘person’ under FCRA, 2010 is distinct from an individual person. Therefore, if an Association is engaged in activities permissible under the Act, an employee of a registered newspaper or an electronic media engaged in production & broadcast of audio-visual news or current affairs programme may happen to be on the executive committee/governing body of such an Association in his/her individual capacity.  However, it should be ensured that the Association itself does not bring out any publication registered as a newspaper under the PRB Act, 1867 or act as correspondent, columnist, editor, printer or publisher of a registered newspaper or engage in the production or broadcast of audio news or audio-visual news or current affairs programmes through electronic mode or any other electronic form or any other mode of mass communication thereby attracting provisions of Section 3 of FCRA, 2010.   It would also be appropriate if such individuals do not hold positions of such influence that they may divert the activities of the Association towards engagement in publication and electronic media on political news or current affairs programme. Further, it is advisable to ensure that such persons are not the key functionaries of the organisation or engaged in its direct management.   In other words, it is advisable that such persons remain only as general members of the governing body without having any executive/decision making powers in respect of the functioning of the Association. The Memorandum of Association and bylaws of the organisation should ensure this.

Question 105

Whether a member of any Legislature or an office-bearer of a political party can be a member of the executive committee or governing body of an Association under FCRA, 2010?

Answer: As explained in reply to Q. 103, the legal entity of a ‘person’ under FCRA, 2010 is distinct from an individual person. Therefore, if an Association is engaged in activities permissible under the Act, there would be no legal bar if a member of any Legislature or a member/office-bearer of a political party, who otherwise attract the provisions of Section 3 of FCRA, 2010, is on the executive committee or governing body of such an Association in his/her personal capacity.  However, the Association itself should not engage in any active politics or party politics and its Memorandum of Association and bylaws should ensure this. Further, it is advisable to ensure that such persons are not the key functionaries of the organisation or engaged in its direct management.  In other words, it is advisable that such persons remain only as general members of the governing body without having any executive/decision making powers in respect of the functioning of the Association.

Question 106

Is there any restriction under FCRA, 2010 for an individual to be on the executive committees/governing bodies of several Associations?

Answer: No. However, it is advisable that only such individuals who can devote their time for the organisation are taken on the executive committee/governing body. Further, having the same individual(s) in the executive committees/governing bodies of several associations may create difficulties if, for whatever reason, the activities of any of the individuals in one of the associations or any of the associations itself come under suspicion/investigation, the other associations so linked may also have to face investigation/inquiry.  

Question 107

Is there any restriction under FCRA, 2010 for an individual to be chief executive officer (CEO) or Chief Functionary of several Associations?

Answer: No.  However, since it is expected that the CEO of any organisation would devote all his time towards achieving the goals of the organisation, it is not advisable to appoint anyone as the CEO or Chief Functionary of more than one Association. Further, having the same individual as the CEO or Chief Functionary of several organisations may create difficulties if, for whatever reason, the activities of the individual or any of such organisations itself come under suspicion/investigation, the other organisations so linked to him/her may also have to face investigation/inquiry.  ​

Question 108

Please explain the process followed by MHA for disposal of an application for registration or prior permission.

Answer: The following steps are involved ‒

Applications for registration

(a)       MHA would check whether the application and the uploaded supporting documents are complete in all respect and take action as under ‒

(i)        If the application is incomplete for want of some documents and if some clarification is needed, MHA would send an e-mail to the applicant Association or indicate in its online portal to submit those documents/clarification prescribing the period/date by which the documents/clarification should reach MHA.  If the Association concerned fails to respond even after reminders, the case would be closed and the applicant Association informed accordingly. Please note that in its e-mail or its online portal, MHA would indicate the e-mail address or the link where the Association should send its response.

(ii)       If it is seen that the application is faulty or incorrectly filled or there is a mismatch between the data filled in the application and the supporting documents, MHA may either direct the Association to make up the shortcomings in the application or may summarily reject the same and inform the applicant accordingly.

(b)       In case of complete applications, MHA would await report from the Investigating Agencies and after receipt of the report, process the cases in the following manner ‒

(i)        Where the applicant Association meets all the eligibility criteria and has been given clearance from security angle, registration would be granted.

(ii)       In case where such report is adverse and security clearance has not been given, MHA would refuse to grant registration and inform the applicant Association accordingly indicating the reason(s) for refusal.      

(c)        In cases where it is seen that the applicant had earlier taken PP, it is examined whether the Association had filed the mandatory annual returns and the returns are scrutinised.  Where the returns are found correct and the applicant Association meets all the eligibility criteria and has been given clearance from security angle, registration is granted.

(d)       If it is found that the applicant Association had accepted foreign contribution without registration or prior permission, it is asked to explain why it has violated the provisions of FCRA and depending on the case and justifications given by the Association, further action is taken for inspection or compounding of the offence or handing over the case to CBI or to the State Police (Crime Branch) for further inquiry/prosecution.

(e)       Where it is decided to compound the offence by imposition of penalty and the Association deposits the amount of penalty, the case is processed and subject to its meeting all the criteria and security clearance, registration is granted.

Applications for prior permission

(a)       The process indicated at (a) in respect of applications for registration remains the same.

(b)       In case of complete applications, MHA awaits report from the Investigating Agencies.  Security clearance in respect of the donor/donor agency is also obtained by MHA, wherever required. After receipt of the report, the cases are processed in the following manner ‒

(i)        Where the applicant Association meets all the eligibility criteria and has been given clearance from security angle, prior permission would be granted.

(ii)       In case where such report is adverse and security clearance has not been given, MHA would refuse to grant prior permission and inform the applicant Association accordingly indicating the reason(s) for refusal.

(c to e) The process indicated at (c) to (e) in respect of applications for registration is followed.

Question 109

What are the common grounds for rejection of an application?

Answer: Some of the common grounds for rejection of an application are indicated below‒

 

  • If it is seen that the application is faulty, i.e., incorrectly filled or there is a mismatch between the data filled in the online application and the supporting documents.
  • If the Association is not registered under any the Societies Registration Act, 1860 or the Indian Trusts Act, 1882 or section 25 of the Companies Act, 1956 etc. or if its Trust deed is not registered in a Court of law.
  • If any of the office bearers/trustees including the chief functionary is a foreign national, other than of Indian origin.
  • If the Association has a single office bearer/member.
  • If the Association is found to have been formed for personal gain or for diversion of funds for undesirable purposes.
  • If the Association is found to be fictitious or ‘benami’ in nature.
  • If the credibility of any member of the governing body is in doubt. 
  • If the Association or any of its key functionaries has close links with another Association which has been refused registration/PP under FCRA or prohibited under FCRA or violated the provisions of FCRA. 
  • If the Association has links with any banned organizations.
  • If the principal office bearers of the Association have been convicted by any court of law under any act or if a prosecution for any offence is pending against them.
  • If the principal office bearers of the Association have been found guilty of diversion or misutilisation of funds of the said Association or any other Association in the past.
  • If the activities of the Association are found to be aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another.
  • If the Association is found to propagate sedition or to advocate violent methods to achieve its ends.
  • If the Association is found to be creating communal tension or disharmony. 
  • If the office bearers of the Association are also office bearers of another Association and one of these Associations has come to adverse notice.
  • If the Association’s printed work is not certified by the Registrar of Newspapers for India not to be a newspaper in terms of section 1(1) of the Press and Registration of Books Act, 1867.
  • If the source of foreign contribution is found to be adverse to the interests of the country.
  • If the acceptance of foreign contribution by the Association is likely to be prejudicial to (a) the sovereignty and integrity of India; (b) free and fair elections to any Legislature or House of Parliament; (c) public interest; (d) friendly relations with a foreign state; or (e) harmony between any religious, social, linguistic, regional group, caste or community.
  • If the Association has not filed its annual returns of receipt and utilization of foreign contribution received with prior permission, within the stipulated period.
  • If the Association has violated any provision of the Act or Rules in the preceding three years and the said violation has not been remedied or rectified.
  • If the Association’s registration certificate under FCRA has been suspended and such suspension of certificate continues on the date of making application.

Additional grounds for rejection of applications for Registration

  • If the Association has not been in existence for three years from the date of its registration under the Societies Registration Act, 1860 or the Indian Trusts Act, 1882 or Section 25 of the Companies Act, 1956 etc.
  • If the Association has not carried on any activity in its chosen field during the last three years.
  • If the Association has not received foreign contribution, even after the grant of prior permission, during the preceding three years.
  • If the Association has not made any substantial contribution, i.e., at least Rs.15 lakh over a period of three years, on its core activities for the benefit of society during the last three financial years excluding expenditure on administrative activities.

Question 110

Whether an Association can represent against rejection of its application for grant of registration/PP?  Whether there is any fee for such representation?

Answer: Yes.  There is no fee for making such representation.​

Question 111

How to find the status of a pending application for registration/PP/renewal?

Answer: Status of pending applications for grant of registration/PP/renewal may be checked at the online portal (https://fcraonline.nic.in) of FCRA Services using the user ID and password created at the time of filing the application. One has to click on the ‘Track Your Application’ tab displayed on the homepage of the portal.

Question 112

What is the time frame for disposal of an application for registration/PP?

Answer: In terms of Section 11(3) of FCRA, 2010, MHA is supposed to grant registration or prior permission, as the case may be, ordinarily within 90 days from the date of receipt of a complete application in the prescribed form and manner, if after making such inquiry as the Central Government (MHA) deems fit, it is of the opinion that the conditions specified in Section 12(4) of the Act for the grant of registration/PP are satisfied.  In case registration/PP is not granted within the said period of 90 days, MHA shall communicate the reasons therefor to the applicant.

Question 113

Generally, MHA does not dispose of applications within 90 days even after submission of applications complete with all documents and fee.  What are the reasons for delay?

Answer: There are several reasons and it depends on case to case.  However, the main reasons are ‒

  • Non-receipt of security clearance from the Investigative Agencies and report/comments from the State Governments, wherever required.
  • Non-submission of some document or clarification sought by MHA from the applicant Associations.
  • Lack of manpower in MHA and Investigative Agencies vis-a-vis the large number of applications. 

Question 114

Could a private limited company or a partnership firm get registration or prior permission under FCRA, 2010?

Answer: As per Section 2(1)(a) read with Section 2(1)(m) of FCRA, 2010, a ‘person’ inter alia includes an ‘association’ which in turn is defined as an Association of individuals, whether incorporated or not, having an office in India and includes a society, whether registered under the Societies Registration Act, 1860, or not, and any other organisation, by whatever name called.   It means all types of conceivable Associations of two or more individuals, whether incorporated under any Act or not, and having an office in India, are covered under this definition.  Therefore, a private limited company or a partnership firm would also be covered by the definition of an ‘association’ and may seek registration or prior permission for receiving foreign funds in case they wish to undertake some ‘cultural, economic, educational, social or religious’ activity for the benefit of the society at some point of time.

 

Question 115

Whether an individual or a HUF can be given registration or prior permission to accept foreign contribution in terms of section 11 of FCRA, 2010?

Answer: As per Section 2(1)(m) of FCRA, 2010, the definition of a ‘person’ inter alia includes an Individual or a Hindu Undivided Family (HUF). As such, an Individual or HUF is eligible to apply for registration or prior permission to accept foreign contribution. [vide FAQs in website https://fcraonline.nic.in/] However, please note that the mandatory fields of the prescribed online Forms for submission of an application for registration or prior permission are such that it is not possible for an Individual or HUF to submit an online application.

 

Question 116

Whether Proprietorship Firm is treated as an Individual for the purpose of obtaining registration or prior permission under FCRA?

Answer: No.  A Proprietorship Firm is an artificial person and hence, cannot be treated as an individual, i.e., a natural person. 

Question 117

Whether an organisation engaged in running community radio station requires registration or prior permission under FCRA, 2010?

Answer: Section 3(1)(g) of FCRA, 2010 prohibits any ‘association or company engaged in the production or broadcast of audio news or audio-visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 or any other mode of mass communication’ from accepting foreign contribution.

The policy guidelines of the Ministry of Information & Broadcasting for setting up Community Radio Stations (CRS) do not permit broadcast of any public news or current affairs programme by the CRS.  As per the guidelines, the programmes broadcast by the CRS should be of immediate relevance to the community with emphasis on developmental, agricultural, health, educational, environmental, social welfare, community development and cultural programmes. The programming should reflect the special interests and needs of the community. The guidelines of the Ministry of I & B also prescribe that applicants seeking foreign funds from multilateral aid agencies to set up CRS will have to take FCRA clearance.  It follows that running a CRS as such is not prohibited under FCRA, 2010 because a CRS is not permitted to broadcast public news or current affairs programme.  Therefore, an organisation allowed to run a CRS would not attract the provisions of FCRA, 2010 unless it wants to accept foreign funds from multilateral aid agencies.

Question 118

Whether Liaison Offices or Branch Offices of foreign organisations require registration or prior permission under FCRA, 2010?

Answer: The Liaison Offices (LO) or Branch Offices (BO) of foreign organisations are permitted to be set up in India by the Reserve Bank of India (RBI) in accordance with the provisions of Foreign Exchange Management Act, 1999 (FEMA) and their activities including utilisation of grants received from their headquarters are regulated by the guidelines of RBI. A Liaison Office means a place of business to act as a channel of communication between the principal place of business or Head Office or by whatever name called and entities in India but which does not undertake any commercial /trading/ industrial activity, directly or indirectly, and maintains itself out of inward remittances received from abroad through normal banking channel. A branch or liaison office in India may undertake or carry on any activity specified by the RBI but, cannot undertake or carry on any other activity unless otherwise specifically permitted by RBI. Their permissible activities, as specified by the RBI, do not include any of the activities permitted under FCRA, 2010.

Although such LOs and BOs of foreign organisations are covered by the definition of ‘person’ under FCRA, 2010, the provisions of FCRA are not applicable to them. However, they will become applicable depending on the nature of funds received by them in India. The remittance of funds received by the LOs & BOs from their headquarters to maintain themselves will not attract the provisions of FCRA as it would not be covered under the definition of foreign contribution because the payer and payee are the same person and therefore, no transfer, donation or delivery is involved. However, if the LOs & BOs receive foreign contributions (including grants) from foreign sources other than inward remittances from their headquarters and if such receipt is permitted by RBI for undertaking any activity that attracts FCRA, then the provisions of FCRA would apply. The receipt of funds from other foreign sources would be considered as foreign contribution because the payer and payee are different persons and therefore, there is a transfer of funds from a foreign source to the LO/BO in India.  In such cases where the provisions of FCRA, 2010 are attracted, the LO/BO concerned should apply for prior permission or registration under FCRA 2010 for accepting contributions/grants from foreign sources other than its headquarter.

Question 119

Whether organisations under Central/State Governments are required to obtain registration or prior permission under FCRA, 2010 for accepting FC?

Answer: Yes.  However, in terms of Gazette Notification S.O. 459(E) dated 30.01.2020 issued in supersession of the Gazette Notification S.O. 1492(E) dated 01.07.2011, all organisations (not being a political party), constituted or established by or under a Central Act or a State Act or by any administrative or executive order of the Central Government or any State Government and wholly owned by the respective Government and required to have their accounts compulsorily audited by the Comptroller and Auditor General of India (CAG) or any of the agencies of the CAG, have been exempted from the operation of all the provisions of FCRA, 2010 with effect from 30.01.2020 except as respects things done or omitted to be done before such supersession of S.O. 1492(E) dated 01.07.2011.

Question 120

Is it mandatory for an Association to have registration under the Income Tax Act, 1961 to be eligible for getting registration or prior permission under FCRA, 2010?

Answer: The Income Tax Act, 1961, is also applicable to Voluntary Organisations/NGOs and they are required to be registered under the IT Act for their taxation purposes, i.e., payment of taxes and claiming exemption etc. FCRA, 2010 is about receipt and utilisation of foreign contribution, i.e., donation from foreign source.  Registration under 80G or 12A or 35 AC of the IT Act helps the NGOs in mobilising funds from potential local donors.  The provisions for tax exemptions under 80G or 12A or 35 AC of the IT Act are applicable to local donors and, have nothing to do with the donations given by a foreign source. However, although it is not mandatory for organisations to have registration under 80G or 12A or 35 AC of the IT Act for the purpose of seeking registration or prior permission under FCRA, 2010, the PAN (Permanent Account Number) issued by the Income Tax Department is to be quoted in the application Forms for registration or prior permission. The VOs/NGOs are also required to file IT returns in the prescribed ITR Form.

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