A to Z of Limited Liability Partnership

RAJAT MOHAN

B. Com (H), A.C.A., D.I.S.A.

This article would through light on procedural aspect of LLP right from the incorporation to winding up.

A.        INTRODUCTION

The concept of Limited Liability Partnership (LLP) in India is viewed as an alternative corporate business vehicle that provides the benefits of limited liability and also allows its members the flexibility of organizing their internal structure as a partnership based on a mutually arrived agreement. The revised Bill received the assent of the President of India on 7, January 2009.

LLP is a body corporate formed and incorporated under the LLP Act, which is a distinct legal entity separate from that of its partners. Introducing LLPs, as a new business structure would fill the gap between business firms such as sole proprietorship and partnership, which are generally unregulated and Limited Liability Companies, which are governed by the Companies Act, 1956. It will also provide an aid to the growth of service sector in India. Further, the provisions of the Indian Partnership Act, 1932 shall not apply to a limited liability partnership.

B.        SALIENT FEATURES

The salient features of the act are as follows:

1. LLP can be formed by any two or more person, associated for carrying on a lawful business, by subscribing their names to incorporation document.

2. The rights and duties of LLP and its partners shall be governed by an agreement between partners or between LLP and the partners.

3. The LLP will be a separate legal entity, liable of its assets, with liability of the partners being limited to their agreed contribution in the LLP.

4. Every LLP shall have at least two partners and shall also have at least two individuals as Designated Partners, of whom at least one shall be resident in India.

5. The LLP shall be under an obligation to maintain annual accounts reflecting true and fair view of its state of affairs.

6. A firm, private company or an unlisted company is allowed to convert itself into LLP.

7. The act provides for the winding up of LLP which may be either voluntary or by the tribunal.

8. The provisions of the Indian Partnership Act, 1932 not applicable on LLP.

C. Incorporation of Limited Liability Partnership (LLP)

The procedure for incorporation of LLP is same as that of Incorporation of a Company, which as given below:

C.(i). Registration of User

In order to access this site every user needs to be registered with this site by filling an online form

1. Register yourself on the website of LLP, i.e. www.llp.gov.in by clicking on “Register” tab on top right hand corner of the page.

2. Also upload your digital signature certificate.

C.(ii). Obtaining Designated Partner Identification Number

Every Designated partner of the proposed LLP shall obtain “Designated Partner Identification Number (DPIN), by filing Form – 7 online.

1. Individual Designated Partner shall Log in to their account by entering user name and password. After this, open Form 7 Form E-forms and fill the required information.

2. Submit the application form online after Paying filing fee of Rs. 100 online. Note the provisional DPIN generated by the system.

3. Take the print out of the application form, affix a latest passport size photograph and get it attested/certified for submission physically, along with documentary evidences (proof of identify and proof of residence).

4. Deliver the printed and signed application form, along with the prescribed documents by hand/courier/registered post to the Office of Registrar, Ministry of Corporate Affairs, 3^rd Floor, “Paryavaran Bhawan”, CGO Complex, Lodhi Road, New Delhi – 110003.

C.(iii).  Reserve name of proposed LLP

Name of Proposed LLP may be reserved by any Partner/Designated Partner by filing Form-1.

• Individual Designated Partner of Partner shall Log in to their account by entering user name and password. After this, open Form 1 from E-forms and fill in the details. Details of minimum two designated partners of the proposed LLP, one of them must be a resident of India, is required to be filled in the application for reservation of name. Only individuals or nominees on behalf of the bodies corporate as partners can act as designated partners.
• Select name of the proposed LLP (max. 6 choices can be indicated).
• Attach Digital signatures, pay the necessary fee online and submit the e-form on LLP Portal.

C.(iv).  Incorporation of LLP

This is the last step of incorporating a LLP, where Form-2 is required to be filed with registrar along with necessary documents.

1. After the name is reserved by the Registrar, log on to the portal and fill up Form-2 “Incorporation Document and Statement”.

2. Pay the prescribed fee for registration as specified under ‘Annexure A’ of the LLP Rules, 2009.

3. Statement in the e-form is to be digitally signed by a person named in the incorporation document as a designated partner having permanent DPIM and also to be digitally signed by an advocate/company secretary/chartered accountant/cost accountant in practice and engaged in the formation of LLP.

4. Following documents are required to be filed along with Form-2:

• Copy of authorization where the partner is a limited liability partnership, or company, or a limited liability partnership incorporated outside India or a company incorporated outside India.
• Proof of address of registered office of limited liability partnership.
• Details in respect of names of partners / witnesses and their signatures.
• Any other document as specified in the form.

5. Registrar will register the LLP, within 14 days of filing of Form-2 and a certificate of incorporation will be issued to LLP in Form-16.

C.(v).   Filing of other information

Following documents are required to be filed within 30 Days of incorporation of LLP or these may also be filed simultaneously at the time of filing Form-2.

• Form 3 – Details of LLP agreement
• Form 4 – Notice of Appointment of Partner/Designate Partner.

D.        ELIGIBILITY TO BE A PARTNER

Any person may become a partner by and in accordance with the limited liability partnership agreement and he may also cease to be a partner in accordance with limited liability partnership agreement.

E.         EXTENT AND LIMITATION OF LIABILITY OF PARTNERS

A partner is not personally liable; directly or indirectly for an obligation, solely by reason of being a partner of the limited liability partnership. However, the personal liability of a partner shall not be affected for his own wrongful act or omission, but a partner shall not be personally liable for the wrongful act or omission of any other partner of the LLP.

If incase any act being carried out be LLP or any partner with intention to defraud creditors or any other person or for any fraudulent purpose, the liability in such cases shall be unlimited for all or any other debts or other liabilities of the LLP.     In case any such act is carried out by a partner, then his liability shall be unlimited and also liability of LLP be unlimited unless it is established by the limited liability partnership that such act was without the knowledge or the authority of the limited liability partnership. However a partner shall not be personally liable for the wrongful act or omission of any other partner of the LLP.

Every person who is knowingly a party to any such act shall be punishable with an imprisonment for a term which may extend to two years and with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

F.         DESIGNATED PARTNERS

Every limited liability partnership shall have at least two designated partners who are individuals and at least one of them shall be a resident in India. In case all the partners are bodies corporate or in which one or more partners are individuals and bodies corporate, at least two individuals who are partners of such limited liability partnership or nominees of such bodies corporate shall act as designated partners.

Every designed partner of a limited liability partnership shall obtain a Designated Partner Identification Number (DPIN).

A designated partner shall be liable to all penalties imposed on the limited liability partnership for any contravention of the provisions of the act.

G. Books of Accounts

Every limited liability partnership shall keep books of accounts which shall contain-

1. particulars of all sums of money received and expended by the limited liability partnership and the matters in respect of which the receipt and expenditure takes place;
2. a record of the assets and liabilities of the limited liability partnership;
3. statements of cost of goods purchased, inventories, work-in-progress, finished goods and cost of goods sold; and

Such books of accounts shall be preserved for eight years.

Every LLP shall file the Statement of Accounts and Solvency in Form-8 with the Registrar, within a period of thirty days from the end of six months of the financial year.

H. AUDIT

Every limited liability partnership shall be required to get its accounts audited. However a limited liability partnership whose turnover does not exceed, in any financial year, forty lakh rupees, or whose contribution does not exceed twenty-five lakh rupees shall not be required to get its accounts audited. Audit can be assigned only to a Chartered Accountant in practice.

I. Annual Return

Every limited liability partnership shall file and annual return with the Registrar in Form-11 with in 60 days of closure of its financial year.

The annual return of an LLP having turnover upto INR 5 crore during the corresponding financial year or contribution upto INR 50 lakh shall be accompanied with a certificate from a designated partner(other than the signatory to the annual return), to the effect the annual return contains true and correct information. In all other cases, the annual return shall be accompanied with a certificate from a Company Secretary in practice to the effect that he has verified the particulars from the books and records of the limited liability partnership and found them to be true and correct.

J. CONVERSION FROM FIRM INTO LIMITED LIABILITY PARTNERSHIP

A firm can be converted into LLP, upon such conversion the partnership firm shall deemed to dissolved and all the assets and liabilities of the firm shall be transferred to, and vest with LLP.

Conversion can carried out by the following procedure:

1. Obtain DPIN

2. Reserve name of proposed LLP

3. Apply to Registrar in Form No. 17 online duly signed by proposed Designated Partner. This application should also be verified by a Practicing Company Secretary.

Following documents shall be attached with this Form:

1. Consent of each of the partners of the firm.

2. Duly filled in Form No. 2,3 and 4.

3. No Objection Certificate from Tax authorities.

4. In case of Professional Firms, approval from governing Council of relevant body.

5. Consent of Creditors.

The ROC may register the firm as an LLP and issue Certification of registration in Form-19, provided all the partners of the firm become partners of LLP. The new LLP so formed is required to inform within 15 days of the date of registration, to the concerned Registrar of Firms with which it was registered under the provisions of the Indian Partnership Act, 1932 about the conversion and particulars of the limited liability partnership shall also be required to be submitted in Form-14.

The LLP shall ensure that within a period of twelve months commencing not later than 14 days after the date of registration, every official correspondence of the LLP bears a statement that is was, as form the date of registration, has been converted from a firm into a LLP and the name of registration number, of the firm from which it was converted.

K. CONVERSION FROM PRIVATE COMPANY/UNLISTED PUBLIC COMPANY INTO LIMITED LIABILITY PARTNERSHIP

A Private Company/Unlisted Public Company (“Co.”) can be converted into LLP, upon such conversion the Co. shall deemed to dissolved and all the assets and liabilities of the Co. shall be transferred to, and vest with LLP. Conversion can be carried out by the following procedure:

1. Obtain DPIN

2. Reserve name of proposed LLP

3. Apply to Registrar in Form No. 18 online duly signed by proposed Designated Parnter. This application should also be verified by a Practicing Company Secretary.

Following documents shall be attached with this Form:

a)      Consent of each shareholder of the Co.

b)      Duly filled in Form No. 2, 3 and 4.

c)      No. Objection Certificate from Tax authorities.

d)      In case of Professional Firms, approval from governing Council of relevant body.

e)      Consent of Creditors.

The ROC may register the Co. as an LLP and issue Certificate of registration in Form-19, provided all the members of the Co. become partners of LLP. The new LLP so formed is required to inform within 15 days of the date of registration, to the concerned Registrar of Companies with which it was registered under the provisions of the Companies Act, 1956 about the conversion and particulars of the limited liability partnership shall also be required to be submitted in Form-14.

The LLP shall ensure that within a period of twelve months commencing not later than 14 days after the date of registration, every official correspondence of the LLP bears a statement that it was, as from the date of registration has been converted from a Co. into a LLP and the name and registration number, of the Co. from which it was converted.

L. WINDING UP AND DISSOLUTION OF LLP

The Act provides for voluntary winding up of LLP or circumstances under which the winding up proceedings can be initiated by the tribunal. The Central Government is also empowered under the act to make rules for the provisions in relation to winding up and dissolution of LLP.