In the Budget 2021, our hon’ble financial minister announced about Amendment in LLP Act. In continuation of same, Ministry of Corporate Affairs issued a press release on 03rd February 2021. MCA initiates process of De-criminalisation of compoundable offences of LLP
Further in continuation of the same Wednesday, 28th July, 2021 Cabinet has passed LLP Amendment Bill, 2021. This will be the first time that changes are being made to the Act since it came into effect in 2009. They have made 30 amendments to LLP Act 2008 by LLP Amendment Bill 2021.
Most Important: Introduction of New Concept of Small LLP.
PURPOSE OF AMENDMENT IN VERSION:
a) The government looks to improve ease of doing business and encourage start-ups.
b)To encourage business class to incorporate LLP’s.
c) To make it popular for Startups
d) Conversion of Partnership firms into LLP’s
e) To remove the fear of criminal prosecutions for non- substantive minor and procedural omissions and commissions in the normal course of their business transactions.
f) The objective of the De-criminalization exercise is to remove criminality of offences from business laws where no malafide intentions are involved
A. PRINCIPLES ADOPTED FOR DECRIMINALIZATION OF COMPOUNDABLE OFFENCES:
a) Principle 1: Offences that relate to minor/ less serious compliance issues, involving predominantly objective determinations, are proposed to be shifted to the In-house Adjudication Mechanism (IAM) framework instead of being treated as criminal offences.
b) Principle 2: Offences that are more appropriate to be dealt with under other laws, are proposed to be omitted from the LLP Act, 2008.
c) Principle 3: For non-Compoundable offences that are very serious violations entailing an element of fraud, intent to deceive and caused injury to public interest or non- compliance of order of statutory authorities impinging on effective regulation, Status Quo would be maintained.
As per proposed amendment,
- LLP shall have only 22 Penal Provisions under the LLP Act
- Only 7 (Seven) Compoundable Offences
- Only 3 (Three) Non-Compoundable Offences
Crux:
♦ In all, twelve (12) offences are proposed to be decriminalized and three (3) section having criminal liability is proposed to be omitted.
♦ The 12 de-criminalized offences would then get shifted to IAM thereby de-clogging the criminal courts from routine cases
B. NEW CONCEPTS:
The key components of MCA21 to be launched during Fiscal Year 2021-22 are:
a) Small LLP: It is proposed to create a class of LLP called as “Small LLP” in line with the concept of Small Companies. Such Small LLPs would be subject to lesser compliances, lesser fee or additional fee and lesser penalties in the event of default. Thus, lower cost of compliance would incentivize unincorporated micro and small partnerships to convert into the organized structure of an LLP and derive its benefits.
b) Earlier: LLPs with contribution less than or equal to ₹25 lakh and turnover less than ₹40 lakh are treated as small LLPs
c) Proposed Amendment:₹25 lakhs will go over to ₹5 crores and the turnover size will be treated as ₹50 crores.
d) Non-convertible Debentures (NCDs): It is proposed to allow LLPs to raise capital through issue of fully secured Non-Convertible Debentures (NCDs) (as an alternative to equity participation) from investors who are regulated by SEBI or RBI. This will help deepen the Debt Market and enhance the capitalization of LLPs.
C. REDUCTION OF ADDITIONAL FEE:
It is also proposed to amend Section 69 of the Act with a view to reduce the additional fee of Rs. 100 per day which is presently applicable for the delayed filing of forms, documents. A reduced additional fee is expected to incentivize smooth filing of records and returns of LLPs and consequently result in an updated registry for proper regulation and policy making.
CONCLUSION:
They are bridging this gap between Company and LLP’s snd making LLPs far more attractive and easy to handle, so that many of the startups today, which prefer the LLP model can also feel equally given the ease of business opportunities.
*****
Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com).
Disclaimer: The entire contents of this document have been prepared based on relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided, I assume no responsibility, therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a piece of professional advice and is subject to change without notice. I assume no responsibility for the consequences of the use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION
Author Bio
