Analysis: Limited Liability Partnership (Amendment) Rules, 2022

(i) the first and second provisos shall be omitted;

(ii) in the third proviso, for the words “Provided also” the word “Provided” shall be substituted;

This amendment is made to remove the following modes of payment from the provisions of the LLP which are used to make payments in pursuance of the Act or any rule made or notification issued thereunder.

Omitted provisos:

Provided that the fees payable to the Registrar may be paid also through postal orders (where the amount involved does not exceed fifty rupees) or through bank drafts payable at and/or drawn on post offices or banks, as the case may be, located at the same city or town where the office of the Registrar is situated.

Provided further that, where a fee payable to the Registrar is paid through postal orders or bank drafts as aforesaid, it shall not be deemed to have been paid unless and until the relevant postal orders or drafts are cashed and the amount credited.

Insertion: Rule 5(3)

The National Company Law Appellate Tribunal Rules, 2016 mutatis mutandis shall be applicable for filing an appeal under sub-sections (2) and (3) of section 72.

Substitution: Rule 18(2)(xi)

the proposed name is identical with or too nearly resembles the name of any other limited liability partnership or a company.

Amended provision:

the proposed name is identical with or too nearly resembles the name of any other limited liability partnership or a company a firm or LLP or company incorporated outside India and reserved by such firm, LLP or company with the registrar in accordance with these rules.

A limited liability partnership or a company or a proprietor of a registered trade mark under the Trade Marks Act, 1999 (47 of 1999) which already has a name or trade mark which is similar to or which too nearly resembles the name or new name of a limited liability partnership incorporated subsequently, may apply to the Regional Director in Form 23 to give a direction to that limited liability partnership incorporated subsequently to change its name or new name, as the case may be:

Provided that an application of the proprietor of the registered trade mark shall be maintainable within a period of three years from the date of incorporation or registration or change of name of limited liability partnership under the Act.

In the existing provisions, the right to apply to the RD was vested in the hands of LLP, body corporate or any other entity which already has a name which is similar to or which too nearly resembles the name of an LLP incorporated subsequently. Also, no such limitation period was prescribed.

Vide this amendment, the rights are concentrated in the hands of LLP, company and a proprietor of a registered trade mark. Also, the cases of change of name are now covered in the ambit of this Rule.

Furthermore, it is also provided that an application of the proprietor of the registered trade mark shall be maintainable within a period of 3 years from the date of incorporation or registration or change of name of LLP.

Insertion: Rule 19A

19A. Allotment of new name to existing LLP under sub-section (3) of section 17.

(1) In case a Limited Liability Partnership (herein after referred to as “LLP”) fails to change its name or new name, as the case may be, in accordance with the direction issued under sub-section (1) of section 17 within a period of three months from the date of issue of such direction, the letters “ORDNC” (which is an abbreviation of the words “Order of Regional Director Not Complied”), the year of passing of the direction, the serial number and the existing LLPIN of the LLP shall become the new name of the LLP without any further act or deed by the LLP, and the Registrar shall accordingly make entry of the new name in the register of LLP and issue a fresh certificate of incorporation in Form No. 16A:

Provided that nothing contained in sub-rule (1) shall apply in case e-form LLP Form No-5 filed by the LLP is pending for disposal at the expiry of three months from the date of issue of direction by Regional Director unless the said eform is subsequently rejected.

(2) The LLP whose name has been changed under sub-section (3) of section 17 shall at once make necessary compliance with the provisions of section 21 and the statement, “Order of Regional Director Not Complied (under section 17 of the LLP Act, 2008)” shall be mentioned in brackets below the name of LLP on its invoices, official correspondence, and publications:

Provided that no such statement shall be required to be mentioned in case the LLP subsequently changes its name in accordance with section 19.

This amendment is in consonance with the provisions of “Rule 33A: Allotment of a new name to the existing company under section 16(3) of the Act” of Companies (Incorporation) Rules, 2014.

[as inserted vide the Companies (Incorporation) Fifth Amendment Rules, 2021]

Insertion: after Rule 37

37A. Adjudication of penalties.

(1) The Central Government may appoint any of its officers, not below the rank of Registrar, as adjudicating officers for adjudging penalty under the provisions of the Act.

(2) Before adjudging penalty, the adjudicating officer shall issue a written notice, to the limited liability partnership, partner or designated partner of a limited liability partnership or any other person who has committed non-compliance or made default under the Act, as the case may be, to show cause, within such period

as may be specified in the notice (not being less than fifteen days and not more than thirty days from the date of service thereon), why the penalty should not be imposed on it or him.

(3) Every notice issued under sub-rule (2), shall clearly indicate the nature of non-compliance or default under the Act alleged to have been committed or made by such limited liability partnership, its partner or its designated partner, or any other person, as the case may be and also draw attention to the relevant penal provisions of the Act and the maximum penalty which can be imposed on such limited liability partnership, its partners or designated partners or any other person, as the case may be.

(4) The reply to such notice shall be filed in electronic mode only within the period as specified in the notice:

Provided that the adjudicating officer may, for reasons to be recorded in writing, extend the period referred to above by a further period not exceeding fifteen days, if the limited liability partnership or its partners or designated partners or any other person, as the case may be, satisfies the adjudicating officer that it or he has sufficient cause for not responding to the notice within the stipulated period or the adjudicating officer has reason to believe that the limited liability partnership or its partners or designated partners or any other person has received a shorter notice and did not have reasonable time to give reply.

(5) If, after considering the reply submitted by such limited liability partnership or its partners or designated partners, or any other person, as the case may be, the adjudicating officer is of the opinion that physical appearance is required, he shall issue a notice, within a period of ten working days from the date of receipt of reply fixing a date for the appearance of such limited liability partnership, through its authorised representative, or partners or designated partners, or any other person, whether personally or through his authorized representative:

Provided that if any person, to whom a notice is issued under sub-rule (2), desires to make an oral representation, whether personally or through his authorised representative and has indicated the same while submitting his reply in electronic mode, the adjudicating officer shall allow such person to make such representation after fixing a date of appearance.

(6) On the date fixed for hearing and after giving a reasonable opportunity of being heard to the person concerned, the adjudicating officer may, subject to reasons to be recorded in writing, pass any order in writing as he thinks fit including an order for adjournment:

Provided that after the hearing, the adjudicating officer may require the concerned person to submit his reply in writing on certain other issues related to the notice under sub-rule (2), relevant for determination of the default.

(7) The adjudicating officer shall pass an order –

(a) within thirty days of the expiry of the period specified in sub-rule (2), or of such extended period as referred therein, where physical appearance was not required under sub-rule (5);

(b) within ninety days of the date of issue of notice under rule (2), where any person appeared before the adjudicating officer under sub-rule (5):

Provided that in case an order is passed after the aforementioned duration, the reasons of the delay shall be recorded by the adjudicating officer and no such order shall be invalid merely because of its passing after the expiry of such thirty days or ninety days as the case may be.

(8) Every order of the adjudicating officer shall be duly dated and signed by him and shall clearly state the reasons for requiring the physical appearance under sub-rule (5).

(9) The adjudicating officer shall send a copy of the order passed by him to the concerned limited liability partnership, its partner or designated partner or any other person or all of them and to the Regional Director and a copy of the order shall also be uploaded on the website.

(10) For the purposes of this rule, the adjudicating officer shall exercise the following powers, namely: –

(a) to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case after recording reasons in writing.

(b) to order for evidence or to produce any document, which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry.

(11) If any person fails to reply or neglects or refuses to appear as required under sub-rule (5) or sub-rule (10) before the adjudicating officer, the adjudicating officer may pass an order imposing the penalty, in the absence of such person after recording the reasons for doing so.

(12) Penalty shall be paid through Ministry of Corporate Affairs portal only.

(13) All sums realised by way of penalties under the Act shall be credited to the Consolidated Fund of India.

Explanation 1. – (a) For the purposes of this rule, the term ―specified manner‖ shall mean service of documents as specified under sub-section (2) of section 13 and rules made thereunder and details in respect of address (including electronic mail ID) provided in the documents filed in the registry shall be used for communication under this rule.

(b) Service of documents on a limited liability partnership or its partners or designated partners or any other person shall include speed post or courier service or in any other manner through electronic transmission, at the registered office and any other address specifically declared by the limited liability partnership for the purpose in such form under sub-rule (3) of rule 16.

(c) In case of delivery by post, such service shall be deemed to have been effected at the time at which the document would be delivered in the ordinary course of post.

Explanation 2. – For the purposes of this rule, it is hereby clarified that the requirement of submission of replies in electronic mode shall become mandatory after the creation of the e-adjudication platform.

37B. Appeal against order of adjudicating officer.

(1) Every appeal against the order of the adjudicating officer shall be filed in writing with the Regional Director having jurisdiction in the matter within a period of sixty days from the date on which the copy of the order made by the adjudicating officer is received by the aggrieved party in Form No 33 – LLP ADJ setting forth the grounds of appeal and shall be accompanied by a certified copy of the order against which the appeal is sought:

Provided that the Regional Director may entertain an appeal after the expiry of the said period of sixty days, but within a further period of not exceeding thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period so specified:

Provided further that where the party is represented by an authorised representative, a copy of such authorisation in favour of the representative and the written consent thereto by such authorised representative shall also be appended to the appeal:

Provided also that an appeal in Form No 33 – LLP ADJ shall not seek reliefs therein against more than one order unless the reliefs prayed for are consequential.

(2) Every appeal filed under this rule shall be accompanied by a fee of one thousand rupees for Small LLPs and two thousand and five hundred rupees for other than Small LLPs.

37C. Registration of appeal.

(1) On the receipt of an appeal, office of the Regional Director shall endorse the date on such appeal and shall sign such endorsement.

(2) If, on scrutiny, the appeal is found to be in order, it shall be duly registered and given a serial number:

Provided that where the appeal is found to be defective, the Regional Director may allow the appellant such time, not being less than fourteen days following the date of receipt of intimation by the appellant from the Regional Director about the nature of the defects, to rectify the defects and if the appellant fails to rectify such defects within the time period allowed as above, the Regional Director may by order and for reasons to be recorded in writing, decline to register such appeal and communicate such refusal to the appellant within a period of seven days thereof:

Provided further that the Regional Director may, for reasons to be recorded in writing, extend the period referred to in

the first proviso above by a further period of fourteen days if an appellant satisfies the Regional Director that the appellant had sufficient cause for not rectifying the defects within the period of fourteen days referred to in the first proviso.

37D. Disposal of appeal by Regional Director.

(1) On the admission of the appeal, the Regional Director shall serve a copy of appeal upon the adjudicating officer against whose order the appeal is sought along with a notice requiring such adjudicating officer to file his reply thereto within such period, not exceeding twenty-one days, as may be stipulated by the Regional Director in the said notice:

Provided that the Regional Director may, for reasons to be recorded in writing, extend the period referred to in subrule

(1) above for a further period of twenty-one days, if the adjudicating officer satisfies the Regional Director that he had sufficient cause for not being able to file his reply to the appeal within the above-said period of twenty-one days.

(2) A copy of every reply, application or written representation filed by the adjudicating officer before the Regional Director shall be forthwith served on the appellant by the adjudicating officer.

(3) The Regional Director shall notify the parties, the date of hearing of the appeal which shall not be a date earlier than thirty days following the date of such notification for hearing of the appeal.

(4) On the date fixed for hearing the Regional Director may, subject to the reasons to be recorded in writing, pass any order as he thinks fit including an order for adjournment of the hearing to a future date.

(5) In case the appellant or the adjudicating officer does not appear on the date fixed for hearing, the Regional Director may dispose of the appeal ex-parte:

Provided that where the appellant appears afterwards and satisfies the Regional Director that there was sufficient cause for his non-appearance, the Regional Director may make an order setting aside the ex-parte order and restore the appeal.

(6) Every order passed under this rule shall be dated and duly signed by the Regional Director.

(7) A certified copy of every order passed by the Regional Director shall be communicated to the adjudicating officer and to the appellant forthwith and to the Central Government.

[COMMENT: Attentional shall be drawn to the newly inserted section 76A in the LLP Act vide Amendment Act of 2021.]

Substitution: Annexure A

1. For registration of Limited Liability Partnership including conversion of a firm or a private company or an unlisted public company into Limited Liability Partnership:

(a) Limited Liability Partnership whose contribution does not exceed Rs. 1 lakh

Rs. 500

(b) Limited Liability Partnership whose contribution exceeds Rs. 1 lakh but does not exceed Rs. 5 lakhs

Rs. 2,000

(c) Limited Liability Partnership whose contribution exceeds Rs. 5 lakhs but does not exceed Rs. 10 lakhs

Rs. 4,000

(d) Limited Liability Partnership whose contribution exceeds Rs. 10 lakhs but does not exceed Rs. 25 lakhs

Rs. 5,000

(e) Limited Liability Partnership whose contribution exceeds Rs. 25 lakhs but does not exceed Rs. 1 Crore

Rs.10,000

(f) Limited Liability Partnership whose contribution exceeds Rs. 1 Crore

Rs. 25,000

[COMMENT: 2 new limits i.e., (e) & (f) are added. Accordingly, the burden of LLPs is also increased. In the existing provisions, the maximum fees was Rs. 5,000 which is now Rs. 25,000.]

2. The difference between the fees payable on the increased slab of contribution and the fees paid on the preceding slab of contribution shall be paid through Form 3.

3. For filing, registering, or recording any document, form, statement, notice, Statement of Accounts and Solvency, annual return and an application alongwith the Statement for conversion of a firm or a private company or an unlisted public company into LLP by the Act or by these rules required or authorised to be filed, registered or recorded:

(a) Limited Liability Partnership whose contribution does not exceed Rs. 1 lakh

Rs. 50

(b) Limited Liability Partnership whose contribution exceeds Rs. 1 lakh but does not exceed Rs. 5 lakhs

Rs. 100

(c) Limited Liability Partnership whose contribution exceeds Rs. 5 lakhs but does not exceed Rs. 10 lakhs

Rs. 150

(d) Limited Liability Partnership whose contribution exceeds Rs.10 lakhs but does not exceed Rs. 25 lakhs

Rs. 200

(e) Limited Liability Partnership whose contribution exceeds Rs. 25 lakhs but does not exceed Rs. 1 Crore

Rs. 400

(f) Limited Liability Partnership whose contribution exceeds Rs. 1 Crore

Rs. 600

[COMMENT: 2 new limits i.e., (e) & (f) are added. Accordingly, the burden of LLPs is also increased. In the existing provisions, the maximum fees was Rs. 200 which is now Rs. 600.]

4. Fee for filing, registering, or recording notice of appointment, cessation, change in name, address, designation of a partner or designated partner, intimation of Designated Partner Identification Number and consent to become a partner or designated partner in LLP Form No. 4:

For Small LLPs Rs. 50

For Other than Small LLPs Rs. 150

[COMMENT: In the existing provision, only Rs. 50 was provided for filing Form No. 4. Vide this notification fees for small LLPs and other than small LLPs is provided separately. In a way, burden of other than small LLPs is increased by Rs. 100.]

5. (1) Fee for any application other than application for conversion of a firm or a private company or an unlisted public company into LLP shall be as under:

(2) Fee for an application under rule 18 (3):

[COMMENT: In the existing provision, only Rs. 500 was provided for filing of application for striking off name of defunct LLP under rule 37. Vide this notification fees for small LLPs and other than small LLPs is provided separately. In a way, burden of other than small LLPs is increased by Rs. 500.]

6. Fee for inspection of documents or for obtaining certified copy thereof shall be as under:

7. Fee for filing any form or a Statement of Account and Solvency or a notice or a document by foreign limited liability partnership

8. Following Table of additional fee shall be applicable for delay in filing of forms.

[COMMENT: Earlier flat additional fees of ₹100 was provided under section 69 of the Act, which subsequently got amended by the Amendment Act of 2021 to remove the limit of 300 days, the fixed amount of additional fees i.e., ₹100 for every day and a proviso was also added to provide for different fees structure for different classes of LLPs. To cater this, the above table no. 8 is added vide this notification.  

Table no. 8 provides for additional fees based on period of delay and type of LLP i.e., small and non-small.

Also Sr. No. G requires special attention.]