Introduction
Limited Liability Partnership (LLP) is a hybrid entity with the advantages of a company and operational flexibility of a partnership. Since the introduction of Limited Liability Partnership Act, 2008 and over a period of time, it has become a popular form of business entity in India owing to its simplified structure, minimal compliances, tax benefits etc. LLPs provides not only the benefits which are available to the companies like Separate Legal Identity, Limited Liability, Perpetual Existence etc. but also provides other exclusive benefits like No Dividend Distribution Tax (DDT), No Audit requirement for small LLPs, Lesser compliances and records maintenance etc. etc.
Foreign Investment in LLP
A clear permissible foreign investment without any government approvals is key factor while choosing a corporate entity by the entrepreneurs. Prior to 2015, FDI under automatic route was allowed only in Indian Companies. Foreign Investment in Limited Liability Partnership required prior approval of the Government. Since 2015, Government of India has amended its FDI policy and allowed foreign investment in LLP under automatic approval route subject to some conditions.
Regulatory Framework
- Limited Liability Partnership Act, 2008.
- Foreign Exchange Management Act, 1999.
- Foreign Exchange Management (Non-debt Instruments) Rules, 2019.
Foreign Direct Investment or Foreign Investment in LLP?
It is the Foreign Investment and not Foreign Direct Investment which allowed in LLP. FDI is always meant investment in equity instrument and hence in LLPs there is no equity instruments. Let’s check the definition of both under FEMA (NDI) Rules, 2019.
Foreign Direct Investment (FDI)
As per FEMA (NDI) Rules, 2019, “FDI” or “Foreign Direct Investment” means investment through equity instruments by a person resident outside India in an unlisted Indian company; or in 10% or more of the post issue paid-up equity capital on a fully diluted basis of a listed Indian company. Hence, investment in equity instruments only amounts to FDI.
Foreign Investment (FI)
As per FEMA (NDI) Rules, 2019, “Foreign Investment” means any investment made by a person resident outside India on a repatriable basis in equity instruments of an Indian company or to the capital of a LLP. Hence, every investment in LLP by a person resident outside India on a repatriable basis amounts to Foreign Investment. Here, investment shall mean capital contribution or acquisition or transfer of profit shares.
Repatriable v.s Non repatriable basis
As per FEMA (NDI) Rules, 2019, “Investment on repatriation basis” means an investment, sale or maturity proceeds of which are net of taxes, eligible to be repatriated out of India whereas Investment on Non-repatriation basis means an investment, sale or maturity proceeds of which are net of taxes, not eligible to be repatriated out of India. It has to be in India after sale or liquidation of investments.
It is important to ascertain by Non-resident Indian (NRI) or Overseas Citizen of India (OCI), at the time of making investment, as to whether investment in repatriable or non repatriable basis. If it is non repatriable basis, then entire provisions of FEMA acts and rules are not applicable to such investments and such investments are treated at par with domestic investments.
Eligible Investor
As per Rule 6 of FEMA (NDI) Rules, 2019, a person resident outside India, other than a citizen of Bangladesh or Pakistan or an entity incorporated in Bangladesh or Pakistan, may invest either by way of capital contribution or by way of acquisition or transfer of profit shares of an LLP, in the manner and subject to the terms and conditions specified in Schedule VI (Investment in a Limited Liability Partnership)
Foreign investment under Automatic route
A person resident outside India (other than a citizen of Pakistan or Bangladesh) or an entity incorporated outside India (other than an entity incorporated in Pakistan or Bangladesh), not being a Foreign Portfolio Investor (FPI) or a Foreign Venture Capital Investor (FVCI), may contribute to the capital of an LLP operating in sectors or activities where foreign investment up to 100% is permitted under automatic route and there are no FDI linked performance conditions.
So, broadly, Foreign Investment in LLPs is permitted subject to the following conditions:
- LLPs operating in sectors/activities where 100% FDI is allowed, through the automatic route and
- there are no FDI linked performance conditions.
Conversion of Company into LLP wherein there is already FDI in Company
A company having foreign direct investment, engaged in a sector where foreign investment up to 100% is permitted under the automatic route and there are no FDI linked performance conditions, may be converted into a LLP under the automatic route.
Conversion of LLP into Company wherein there is already FI in LLP
A LLP having foreign investment, engaged in a sector where foreign investment up to 100% is permitted under the automatic route and there are no FDI linked performance conditions, may be converted into a company under the automatic route.
Valuation requirements
Investment in a LLP either by way of capital contribution or by way of acquisition or transfer of profit shares, should not be less than the fair price worked out as per any valuation norm which is internationally accepted or adopted as per market practice (hereinafter referred to as “fair price of capital contribution or profit share of a LLP”) and a valuation certificate to that effect shall be issued by the Chartered Accountant or by a practising Cost Accountant or by an approved valuer from the panel maintained by the Central Government.
In case of transfer of capital contribution or profit share from a person resident in India to a person resident outside India, the transfer shall be for a consideration not less than the fair price of capital contribution or profit share of a LLP.
In case of transfer of capital contribution or profit share from a person resident outside India to a person resident in India, the transfer shall be for a consideration which is not more than the fair price of the capital contribution or profit share of an LLP.
Downstream Investment
An Indian Company or an LLP, having foreign investment, will be permitted to make downstream investment in another company or LLP in sectors in which
- 100% FDI is allowed under automatic route and
- there are no FDI linked performance conditions.
RBI Reporting Requirements
LLPs which are receiving Foreign Investment in the form of capital contribution shall submit a Single Master Form (SMF) within a period of 30 days from the date of receipt of funds in form LLP(I) to the regional office of the Reserve Bank of India (RBI) under whose jurisdiction the registered office of the LLP is situated, by way of online filing in the RBI’s website https://firms.rbi.org.in/firms/
Any disinvestment or transfer of capital contribution or profit share between a resident and non-resident or vice versa shall be reported to RBI within a period of 60 days from the date of transfer in form LLP(II) to the regional office of the Reserve Bank of India (RBI) under whose jurisdiction the registered office of the LLP is situated, by way of online filing in the RBI’s website https://firms.rbi.org.in/firms/
Conclusion
Owing to flexibility in its structure and operation, LLPs form of organization is growing fast in India, especially in services sector. Globally, LLPs are the most preferred form of doing business, but in India it is still considered as a new kind of entity with new law. But with this step of liberalization of substituting the approval route with automatic route for FDI in LLP and permitting LLPs for downstream investment, the Government of India has taken an approach to enable LLPs to roll over the corporate operating in India to tap foreign investments. This move will also encourage more partnership firms and companies to convert into LLPs due to the tax benefit and flexibility it will offer. Thus, amendment in FDI policy is a welcome move, LLPs seems to have hay-days ahead.
Author Bio
Nice and informative article. However a question arises as to how do you determine a fair valuation of the share of the LLP? In case of company, total FMV is divided by no. of shares to determine the FMV of shares. However, in case of LLP what would be the FMV divided by? What should be taken in the denominator to determine the FMV of the capital contribution to LLP?