SEBI formalises the use of co-investments but leaves some question marks?

Through a series of amendments to the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012 (the “AIF Regulations”) and the Securities and Exchange Board of India (Portfolio Managers) Regulations, 2020 (the “PM Regulations”), the Securities and Exchange Board of India (“SEBI”) has formalised the use of co- investments alongside an alternative investment fund (“AIF”). Although there was no specific bar on co- investments under the AIF Regulations, fund sponsors quickly discovered that they likely needed to obtain an additional licence to advise / manage a co-investment. Further, there was little prospect of aggregating capital from various co-investors into a singlevehicle since doing so may have tantamounted to “pooling” of funds and triggered a requirement to register as an AIF, which in turn would have meant being subject to the diversification restrictions.
Key Takeaways:

• SEBI introduces a new co-investment framework permitting AIF investors to co-invest alongside the AIF through portfolio managers
• The new framework provides that co-investments cannot be on more favourable terms than AIF investments
• Co-investments are not permitted in listed securities
• The global practice of using dedicated co-investment vehicles remains a challenge under the current framework
• There is a tax risk that the co-investors and the AIF will be regarded as an association of persons (AOP) and be taxed at the rate of approximately 30%

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