FAQs on Limited Liability Partnership

CA Durgesh Kabra

Q1. What is LLP?

A1. LLP is defined as partnership formed and registered under Limited Liability Partnership Act is an alternative corporate business form that gives the benefits of limited liability of a company and the flexibility of a partnership. The LLP can continue its existence irrespective of changes in partners. It is capable of entering into contracts and holding property in its own name. The LLP is a separate legal entity, is liable to the full extent of its assets but liability of the partners is limited to their agreed contribution in the LLP. Further, no partner is liable on account of the independent or un-authorized actions of other partners, thus individual partners are shielded from joint liability created by another partner’s wrongful business decisions or misconduct.

Q2. What are the salient features of LLP?

A2.  The LLP shall be a body corporate and a legal entity separate from its partners. Any two or more persons, associated for carrying on a lawful business with a view to profit, may by subscribing their names to an incorporation document and filing the same with the Registrar, form a Limited Liability Partnership.

The following are the salient features of LLP:

1) Legal Existence

It is a body corporate with distinct legal entity and perpetual succession.

2) Rights and Duties of Partners

Mutual rights and duties of the members are governed by the agreement between the partners or between the LLP and its partners subject to the provisions of the LLP Act 2008. The act provides flexibility to devise the agreement as per their choice. In the absence of any such agreement, the mutual rights and duties shall be governed by the provisions of proposed the LLP Act.

3) Liability of Partners

The LLP will be liable to the full extent of its assets, with the liability of the partners being limited to their agreed contribution in the LLP which may be of tangible or intangible nature or both tangible and intangible in nature. No partner would be liable on account of the independent or un-authorized actions of other partners or their misconduct. The liabilities of the LLP and partners who are found to have acted with intent to defraud creditors or for any fraudulent purpose shall be unlimited for all or any of the debts or other liabilities of the LLP;

4) Designated Partner

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. The duties and obligations of Designated Partners shall be as provided in the law;

5) Books of Accounts

The LLP shall be under an obligation to maintain annual accounts reflecting true and fair view of its state of affairs. A statement of accounts and solvency shall be filed by every LLP with the Registrar every year;

6) Investigation

The Central Government have powers to investigate the affairs of an LLP, if required, by appointment of competent Inspector for the purpose;

7) Merger and Amalgamation of LLPs

The compromise or arrangement including merger and amalgamation of LLPs shall be in accordance with the provisions of the LLP Act 2008;

8) Conversion of firm, private company and unlisted company into LLP

A firm, private company or an unlisted public company is allowed to be converted into LLP in accordance with the provisions of the Act. Upon such conversion, on and from the date of certificate of registration issued by the Registrar in this regard, the effects of the conversion shall be such as are specified in the LLP Act. On and from the date of registration specified in the certificate of registration, all tangible (moveable or immoveable) and intangible property vested in the firm or the company, all assets, interests, rights, privileges, liabilities, obligations relating to the firm or the company, and the whole of the undertaking of the firm or the company, shall be transferred to and shall vest in the LLP without further assurance, act or deed and the firm or the company, shall be deemed to be dissolved and removed from the records of the Registrar of Companies;

9) Winding up of LLP

The winding up of the LLP may be either voluntary or by the Tribunal to be established under the Companies Act, 1956. Till the Tribunal is established, the power in this regard has been given to the High Court;

10) The Indian Partnership Act, 1932 shall not be applicable to LLPs.

Q3. Who can be a “Designated Partner”? 

A3. Every LLP shall be required to have at least two Designated Partners who shall be individuals and at least one of the Designated Partner shall be a resident of India.

In case of a LLP in which 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 LLP or nominees of such bodies corporate shall act as designated partners.

However following shall be consider as disqualification to appoint as Designated Partner:

• Who has at any time within the preceding five years been adjudged insolvent; or
• Who suspends, or has at any time within the preceding five years suspended payment to his creditors and has not at any time within the preceding five years made, a composition with them; or
• Who has been convicted by a Court for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months; or
• Who has been convicted by a Court for an offence involving section 30 of the Act.

Q4. Whether there would be any requirement of ‘identification number’ of Designated Partner?

A4. Every Designated Partner would be required to obtain a “Designated Partner’s Identification Number” (DPIN) on the lines similar to “Director’s Identification Number” (DIN) required in case of directors of companies apply for application of DPIN as provided in Form 7.

Q5.  What are the requirements for Incorporation of LLP?

A5.  First Obtain designated partner identification number (DPIN / DIN) for the designated partners and also obtain Digital Signature.

a) Reservation of LLP name (e-form 1)

• Address of Registered Office
• Description of proposed business activity
• Proposed monetary value of partner’s contribution (Minimum 1 Lac)
• Proposed name of the LLP (6 names in preference serial)
• Significance of the key or coined word(s), if any, in the proposed name(s) (in brief)

b) Incorporation Documents (e-form 2)

• Address of Registered Office
• Office Phone No.
• Email id of LLP
• Contribution of each partner
• Disclosure of partner towards:

– Number of LLP(s) in which he is a partner

– Number of company(s) in which he is a director

• Proof of Registered Office (Electricity Bill / Landline Bill etc.)
• Subscribers Sheet

c) Details to LLP Agreement (e-form 3)

• Profit sharing Ratio
• Form of Contribution
• Initial Agreement copy
  

d) Consent of Partners (e-form 4)

It contains information about appointment, cessation, change in name/ address/designation of a designated partner or partner and consent to become a partner/designated partner). Format of consent is given in Form -9 available.

Provided that in case of incorporation, the individual who has given his consent to act as Partner or designated Partner shall file consent in Form 2 along with fee.

Q6. Can LLP give any other address (besides its registered office) for the purpose of receiving communication from Registrar and What are the requirements for change in registered office ?

A6. It has been provided in the Act that a document may be served on a LLP or a partner or designated partner by sending it by post or by any other mode (to be prescribed under Rules) at the registered office and any other address specifically declared by the LLP for the purpose in such form and manner as may be prescribed (in the rules). Thus, an LLP shall have option to declare one more address (other than the registered office) for getting statutory notices/letters etc. from Registrar.

Where the change in place of registered office is from one state to another state, the limited liability partnership shall publish a general notice, not less than 21 days before filing any notice with Registrar, in a daily newspaper published in English and in the principal language of the district in which the registered office of the limited liability partnership is situated and circulating in that district giving notice of change of registered office.

Where the change in place of registered office is from one place to another place within the state from the jurisdiction of one Registrar to the jurisdiction of another Registrar or from one state to another state, the limited liability partnership shall file the notice in Form 15 with the Registrar from where the limited liability partnership proposes to shift its registered office with a copy thereof for the information to the Registrar under whose jurisdiction the registered office is proposed to be shifted.

Q7. How can a person become partner of an LLP?

A7. Persons, who subscribed to the “Incorporation Document” at the time of incorporation of LLP, shall be partners of LLP. Subsequent to incorporation, new partners can be admitted in the LLP as per conditions and requirements of LLP Agreement.

Q8. How can an existing partner cease to be a partner of an LLP?

A8. A person may cease to be a partner in accordance with the agreement or in the absence of agreement, by giving 30 days notice to the other partners. Notice is required to be given to ROC when a person becomes or ceases to be partner or for any change in partners.

Q9. What are the compliances related to change in partner?

A9. There is any change in Partner and DP (admission, resignation, cessation, death, expulsion) should be filed e- form 4 within 30 days of change with fees. And also Supplementary LLP Agreement to be filed e- form 3 with ROC within 30 days with fees given the alteration in mutual rights and duties of partners and Form 4 shall include a statement signed by the incoming partner that he consents to become a partner.

Q10. Whether every LLP would be required to maintain and file accounts? 

A10. An LLP shall be under obligation to maintain annual accounts reflecting true and fair view of its state of affairs. The Statement of Account & Solvency in Form-8, essentially signed by the designated partners, is to be filed within 30days from the six months from the closure of the respective financial year i.e. by 30^th October. If there is any delay filing of Form 8 then the penalty would be Rs. 100/- after the above specified period.

Q11. Whether audit of all LLPs would be mandatory? 

A11. Every LLP in India, whose annual turnover exceeds the magnitude of Rs. 40Lakhs or the total contribution of its partners gets above the limit of Rs. 25Lakhs, is mandatorily need to get its accounts audited every financial year, strictly in accordance with the rules and provisions provided in the LLP Rules of 2009.

Provided also that where the partners of such LLP do not decide for audit of the accounts of the LLP, such LLP shall include in the Statement of Account and Solvency a statement by the partners to the effect that the partners acknowledge their responsibilities for complying with the requirements of the Act and the Rules with respect to preparation of books of account and a certificate in the form specified in Form 8.

Q12. Whether any Annual Return would be required to be filed by an LLP? 

A12. Every LLP would be required to file Annual Return with ROC. A duly authenticated Annual Return in e- Form-11, is to be filed with the Registrar, together with the prescribed fee, within a period of 60 days from the closure of every financial year.

Q13. Whether the Registrar would have any power to call for information from LLPs? 

A13. Registrar would have power to obtain such information which he may consider necessary for the purposes of carrying out the provisions of the Act, from any designated partner, partner or employee of the LLP. He would also have power to summon any designated partner, partner or employee of any LLP before him for any such purpose, in case the information has not been furnished to him or in case the Registrar is not satisfied with the information furnished to him.

Any person who, without lawful excuse, fails to comply with any summons or requisition of the Registrar under this section shall be punishable with fine which shall not be less than two thousand rupees but which may extend to twenty-five thousand rupees.

Q14. Which documents are available for public inspection in the office of Registrar?

A14. The following documents/information will be available for inspection by any person on payment of prescribed fees:-

• Incorporation document,
• Names of partners and changes, if any, made therein,
• Statement of Account and Solvency
• Annual Return

But LLP Agreement is not available for public inspection.

Q15. Can Partnership Firm, Private Limited Company and Unlisted Public Company Converted to Limited Liability Partnership?

A15. Yes, The Registrar shall, on conversion of a firm by filing Form 17, private company or an unlisted public company by filing Form 18 into limited liability partnership along with prescribed fees, issue a Certificate of Registration under his seal in Form 19.

In the event, Registrar has refused the registration, the applicant firm or private company or unlisted public company, as the case may be, may apply to the Tribunal within sixty days from the date of receipt of such intimation of refusal.

For the purposes of the proviso to sub-section (1) of section 58, where the firm, private company or unlisted public company has been converted into limited liability partnership, an intimation of such conversion to the concerned Registrar of firms or Registrar of Companies, as the case may be, shall be given in Form 14 within fifteen days of the date of registration of the LLP.

Q16. Whether LLP can be converted?

A16.  As per Chapter XXI of Companies Act 2013 i.e. Section 366 states the provisions of Companies capable of being registered.

Section 366 (1) states that LLP can be registered as Company with certain conditions specific to LLP. Section 366 (2) shall contain seven or more members and Section 366 (2)(ii) says cannot be converted into Limited by Guarantee and Unlimited Company i.e. can be converted into Companies Limited by shares.

Q17. What is the penalty for false representation of statement or any document?

A17. If in any return, statement or other document required by or for the purposes of any of the provisions of LLP Act, any person makes a statement-

(a) which is false in any material particular, knowing it to be false; or

(b) which omits any material fact knowing it to be material, he shall, save as otherwise expressly provided in this Act, be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine which may extend to five lakh rupees but which shall not be less than one lakh rupees.

Q18. Whether Minute book would be maintained? What are the compliances relating to Meetings of LLP?

A18. Minute book should be maintained to record minutes of meetings of partners and managing /executive committee of partners. There is no provision for regular meeting of members of LLPs. Partners can decided when and how to meet or as may be laid down in LLP Agreement.

Q19. Whether offences can be compounded?

A19. Every application for the compounding of an offence shall be made in Form 31 to the Registrar who shall forward the same, together with his comments thereon, to the Central Government.

Where any offence is compounded under whether before or after the institution of any prosecution, intimation thereof shall be given by the LLP to the Registrar in Form 22 within seven days from the date on which the offence is so compounded.

Q20. What are the various Forms available for filing with ROC?

A20.      

Q21. What are the Penalties and Punishments under LLP Act, 2008?

A21. PENALTIES AND PUNISHMENTS UNDER LLP ACT, 2008

 (Author can be reached at [email protected])

Read Other Articles of CA Durgesh Kabra