CA Nitesh Kumar More
What is LLP?
LLP 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.
Rights & Duties of Partners
Mutual rights and duties of the partners within a LLP are governed by an agreement between the partners or between the partners and the LLP as the case may be. The LLP, however, is not relieved of the liability for its other obligations as a separate entity.
LLP shall be a body corporate and a legal entity separate from its partners.
LLP in Other Countries
The LLP structure is available in countries like United Kingdom, United States of America, various Gulf countries, Australia and Singapore.
Difference between Traditional Partnership Vs. LLP
|Not a Legal Entity||Legal Entity|
|Minimum 2 Partners||Minimum 2 Partners|
|Maximum 20 Partners||No Limit|
|Partners are jointly liable||To the extent of Their contribution|
|Registration is not compulsory||Compulsory|
|BS etc. need not be filled||Filling is compulsory|
|Audit is not Compulsory||Compulsory if Turnover is Rs.40 Lakhs or contribution is Rs. 25 Lakhs|
|Name mat be any||Must be approved by Registrar and must have LLP as suffix|
|Minor can become Partner||Minor can not become Partner|
Company VS LLP
A basic difference between an LLP and a joint stock company lies in that the internal governance structure of a company is regulated by statute (i.e. Companies Act, 1956 now Companies Act, 2013) whereas for an LLP it would be by a contractual agreement between partners.
The management-ownership divide inherent in a company is not there in a limited liability partnership.
LLP will have more flexibility as compared to a company.
LLP will have lesser compliance requirements as compared to a company.
The essential requirement for setting LLP is ‘carrying on a lawful business with a view to profit’ so Charitable Institution or organization which we are used to Register as Sec. 25 company earlier can not be registered as LLP.
Formation of LLP
A minimum of two partners will be required for formation of an LLP. There will not be any limit to the maximum number of partners whereas in partnership it is 20.
A body corporate may be a partner of an LLP.
Any individual or body corporate may be a partner in a LLP. However an individual shall not be capable of becoming a partner of a LLP, if—
(a) he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force;
(b) he is an un discharged insolvent; or
(c) he has applied to be adjudicated as an insolvent and his application is pending.
Appointment of at least two “Designated Partners” shall be mandatory for all LLPs. “Designated Partners” shall also be accountable for regulatory and legal compliances, besides their liability as ‘partners, per-se”.
Every LLP shall be required to have atleast 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 inwhich 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.
Every Designated Partner would be required to obtain a “Designated Partner’s Identification Number” (DPIN)
The mutual rights and duties of partners inter se and those of the LLP and its partners shall be governed by the agreement between partners or between the LLP and the partners. This Agreement would be known as “LLP Agreement”.
As per provisions of the LLP Act, in the absence of agreement as to any matter, the mutual rights and liabilities shall be as provided for under Schedule I to the Act. Therefore, in case any LLP proposes to exclude provisions/requirements of Schedule I to the Act, it would have to enter into an LLP Agreement, specifically excluding applicability of any or all paragraphs of Schedule I.
LLPs shall be registered with the Registrar of Companies (ROC) (appointed under the Companies Act, 1956) after following the provisions specified in theLLP Act. Every LLP shall have aregistered office. An Incorporation Document subscribed by at least two partners shall have to be filed with the Registrar in a prescribed form. Contents of LLP Agreement, as may be prescribed, shall alsobe required to be filed with Registrar, online.
Contents of LLP Agreement or any changes made therein, if any, may be filed inForm 3 and details of partners/designated partners may be filed in Form 4
Name of LLP
Every limited liability partnership shall have either the words “limited liability partnership” or the acronym “LLP” as the last words of its name. LLPs would not be given names, which, in the opinion of the Central Government, are undesirable. Registrar would be under obligation to follow such rules, which would be framed by the Central Government in connection with allotting names would be framed by the Central Government in connection with allotting names to LLPs. There are also provisions in respect of ‘rectification of name’ in case two LLPs have been registered with the same name, inadvertently.
The name can be reserved by ROC on approval of Form1, for a period of 3months from the date of intimation by the Registrar. However, Foreign LLP/Companies have an option to reserve their existing names, under which they are operating outside India, for a period of 3 years in India, which can be further renewed on application to Registrar in Form 25.
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.
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.
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. A person shall also cease to be a partner of a limited liability partnership-
(a) on his death or dissolution of the limited liability partnership; or
(b) if he is declared to be of unsound mind by a competent court; or
(c) if he has applied to be adjudged as an insolvent or declared as an insolvent.
Notice is required to be given to ROC when a person becomes or ceases to be partner or for any change in partners.
Every partner shall inform the LLP of any change in his name or address within a period of fifteen days of such change. The LLP, in turn, would be under obligation to file such details with the Registrar within thirty days of such change in Form 4.
Partner’s contribution may consist of both tangible and/or intangible property and any other benefit to the LLP.
Every partner of an LLP would be, for the purpose of the business of the LLP, an agent of the LLP but not of the other partners. Liability oof partners shall be limited except in case of unauthorized acts, fraud and negligence. But a partner shall not be personally liable /span>ffor the wrongful acts or omission of any other partner. An obligation of the limited liability partnership whether arising in contract or otherwise, is solely the obligation of the limited liability partnership.
The liabilities of LLP shall be met out of the property of the LLP.
The Act provides for the minimum of two partners to carry on LLP. If at any time the number of partners of a limited liability partnership is reduced below two and the limited liability partnership carries on business for more than six months while the number is so reduced, the person, who is the only partner of the limited liability partnership during the time that it so carries on business after those six months and has the knowledge of the fact that it is carrying on business with him alone, shall be liable personally for the obligations of the limited liability partnership incurred during that period.
The provisions have also been made in the Act to provide that where after a partner’s death the business is continued in the same LLP name, the continued use of that name or of the deceased partner’s name as a part thereof shall not of itself make his legal representative or his estate liable for any act of the LLP done after his death.
For statutory compliances provisions of at least one resident designated partner(DP) in every LLP is would ensure that at least one partner is available in Indiafor at least six months for regulatory compliance requirements. The LLPs would have freedom to appoint more than one resident as DP. LLP as an entity wouldalways remain liable for regulatory or other compliances. Civil liability on such apartner would be adjudicated by the courts under civil law which recognizes ‘foreign awards’. Criminal liability would require adjudication/ enforcement by thecourts including using the extradition process. Position would be similar to thecases of directors of companies who are foreign nationals.
Accounts & Audit
An LLP shall be under obligation to maintain annual accounts reflecting true and fair view of its state of affairs. A “Statement of Accounts and Solvency” in prescribed form shall be filed by every LLP with the Registrar every year.
The accounts of every LLP shall be audited in accordance with Rule 24 of LLP, Rules 2009.
Such rules, inter-alia, provides that any LLP, whose turnover does not exceed, in any financial year, forty lakh rupees, or whose contribution does not exceed twenty five lakh rupees, is not required to get its accounts audited. However, if the partners of such limited liability partnership decide to get the accounts of such LLP audited, the accounts shall be audited only in accordance with such rule.
Every LLP would be required to file annual return in Form 11 with ROC within 60days of closer of financial year. The annual return will be available for public inspection on payment of prescribed fees to Registrar.
Power of Registrar to Call for information& Inspection
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.
Central Govt may appoint inspectors to investigate the affairs of an LLP. The manner and procedure for conduct of investigation has been specified in the Act.
The following documents/information will be available for inspection by any person:-
Names of partners and changes, if any, made therein,
Statement of Account and Solvency
TThe fees for such inspection of an LLP is Rs 50/- and fees for certified copy or extract of any document u/s 36 shall Rs. 5/- per page.
Filling of Documents
The provisions of the Act require LLPs to file the documents like Statement of Account and Solvency (SAS) and Annual Return (AR) and notices in respect of Account and Solvency (SAS) and Annual Return (AR) and notices in respect of changes among partners etc. within the time specifically indicated in relevant provisions. The Act contains provisions for allowing LLPs to file such documents after their due dates on payment of additional fees. It has been provided that incase LLPs file relevant documents after their due dates with additional fees upto300 days, no action for prosecution will be taken against them. In case there is delay of 300 days or more, the LLPs will be required to pay normal filing fees, additional fee and shall also be liable to be prosecuted.
The Act also contains provisions for compounding of offences which are punishable with fine only.
Taxation of LLP
Since the taxation related matters in India are provided under Tax Laws, the taxation of LLPs has not been provided in the LLP Act. The Finance Bill, 2009 has made provisions in this regard, pursuant to which the taxation scheme of LLPs has been proposed to be introduced in the Income Tax Act. The Finance Bill,2009 has proposed following regarding taxation of LLPs:-
(a) LLPs to be taxed on the lines similar to general partnerships under Indian Partnership Act, 1932, i.e. taxation in the hands of the entity and exemption from tax in the hands of its partners.
(b) Consequent changes to be made in the Income-tax Act, 1961 like (i) the word ‘partner’ to include within its meaning a partner of a limited liability partnership, (ii) the word ‘firm’ to include within its meaning a limited liability partnership and (iii) the word ‘partnership’ to include within its meaning a limited liability partnership.
(c) The designated partner shall sign the income tax return of an LLP, or, where, for any unavoidable reason such designated partner is not able to sign the return or where there is no designated partner as such, any partner shall sign the return.
(dspan>)) In case of liquidation of an LLP, every partner will be jointly and severally liable for payment of tax unless he proves that non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part.
(e) As an LLP and a general partnership is being treated as equivalent (except for recovery purposes) in the Income-tax Act, the conversion from a general partnership firm to an LLP will have no tax implications if the rights and obligations of the partners remain the same after conversion and if there is no transfer of any asset or liability after conversion.
(f) If there is a violation of these conditions, the provisions of section 45 of Income-tax Act shall apply.
Remuneration To Partners –
Remuneration paid to partners is deductible at the hands of LLP within limits prescribed under Income Tax act subject to agreement and other terms & conditions.
Interest To Partners –
Interest paid to partners is deductible at the hands of LLP within limits prescribed under section 40(b) of Income Tax Act if requirements of section 184 are satisfied. As per section 185 of Income Tax Act, if the requirements of section 184 are not satisfied, firm will be assessed as firm but shall not be eligible for deduction of remuneration or interest to partner. Interest paid/credited to partner will be allowable as deduction to LLP and it will be taxed at the hands of partner of LLP.
The conditions for allowing deduction of interest are as follows –
Payment of interest should be authorised by the partnership deed and should be in accordance with terms of partnership deed.
Interest should not pertain to period prior to partnership agreement and (c) Interest should not exceed 12%.
Disallowance of interest and interest u/s 40A(2) –
As per section 40A(2) of Income Tax Act, any expenditure incurred by an assessee in respect of which payment has been made to specified persons (relative, director of company, partner of firm, person having substantial interest in business of assessee etc.), is liable to be disallowed in computing business profit to the extent such expenditure is considered to be excessive or unreasonable, having regard to the fair market value of goods or services or facilities etc.
Thus, even if payment of remuneration or interest is allowable as per section 40(b) of Income Tax Act, it can be disallowed under section 40A (2) of Income Tax Act.
Signing Of Income Tax Return –
Income Tax return shall be signed by designated partner of LLP. If for unavoidable reasons, the designated partner is unable to sign and verify the return, or where there is no designated partner, any partner of LLP can sign and verify income tax return [section 140(cd) of Income Tax Act].
No Presumptive Taxation Scheme –
LLP cannot avail presumptive taxation scheme under sections 44AC or 44AD of Income Tax Act.
Liability of Partner Towards Liability Of Income Tax Of LLP –
All partners of LLP are jointly and severally liable for income tax liability, but a partner can escape the liability if he proves that non-recovery cannot be attributed to any gross neglect, misfeasance or breach of any duty on his part [section 167C of Income Tax Act].
Only private / unlisted public company can be converted into LLP.
In case LLP has been incorporated on or after 1st October of financial year, then LLP can close its first financial year either on the coming or next 31st March i.e. LLP files its first financial year details for 18 months.
In case total number of designated partners (DP) and partners as on 31st March of the financial year for which return is being filed exceeds two hundred, details are required to be updated through the screen. These details are required to be provided in the screen before filling eForm 11. Once the details are updated on the LLP portal, a service request number (SRN) shall be generated by the system and the same is to be mentioned at the time of filing of form 11. Also note that filing of form 11 shall not be allowed in case there is any other eForm 11 pending for payment of fee or any other eForm 11 is under processing or already approved in respect of the SRN.
TThe charge details i.e. creation, modification or satisfaction of charge, can be filed through Appendix to eForm 8(Interim). However, it is not mandatory to file the charge details with the office of Registrar but the stakeholders can voluntarily file the same.
Dissolution of LLP
As per the terms of LLP agreement, LLP can be dissolved by executing dissolution deed. The net assets of the LLP can be distributed amongst the partners in a manner specified under LLP agreement.
If LLP distributes any other amount over & above the original capital and share of profit for the year till dissolution then the tax issues may arise depending upon the nature of the distribution and the character of amount being received by each partner.
Winding up of LLP
LLP can be wound up when a resolution is passed at the General Meeting of the partners and 3/4th majority of the partners approve the winding up of LLP.
The competent Court has power to pass the necessary orders based on the application made by LLP for winding up.
The consent of the lenders and creditors will be necessary before the Court passes an order for winding up of the LLP.
The creditors also have power to make an application for winding up of LLP if 2/3rd in value of the creditors establish that LLP is not in a position to pay the debts to the creditors.
Various Forms for LLP
|Application for reservation or change of name||Form 1||Form 1|
|Incorporation document and subscriber’s statement||Form 2||Form 2|
|Details in respect of designated partners and partners of Limited Liability Partnership||Form 2A||Form 2A|
|Information with regard to limited liability partnership agreement and changes, if any, made therein||Form 3||Form 3|
|Notice of appointment, cessation, change in name/ address/designation of a designated partner or partner. and consentto become a partner/designated partner||Form 4||Form 4|
|Notice of appointment, cessation, change in particulars of a partners||Form 4A||Form 4A|
|Notice for change of name||Form 5||Form 5|
|Statement of Account & Solvency||Form 8||Form 8|
|Annual Return of Limited Liability Partnership (LLP)||Form 11||Form 11|
|Form for intimating other address for service of documents||Form 12||Form 12|
|Notice for change of place of registered office||Form 15||Form 15|
|Application and statement for conversion of a firm into Limited Liability Partnership (LLP)||Form 17||Form 17|
|Application and Statement for conversion of a private company/ unlisted public company into limited liability partnership (LLP)||Form 18||Form 18|
|Notice of intimation of Order of Court/ Tribunal/CLB/ Central Government to the Registrar||Form 22||Form 22|
|Application for direction to Limited Liability Partnership (LLP) to change its name to the Registrar||Form 23||Form 23|
|Application to the Registrar for striking off name||Form 24||Form 24|
|Application for reservation/ renewal of name by a Foreign Limited Liability Partnership (FLLP) or Foreign Company||Form 25||Form 25|
|Form for registration of particulars by Foreign Limited Liability Partnership (FLLP)||Form 27||Form 27|
|Return of alteration in the incorporation document or other instrument constituting or defining the constitution; or the registered or principal office; or the partner or designated partner of limited liability partnership incorporated or registered outside India.||Form 28||Form 28|
|Notice of (A) alteration in the certificate of incorporation or registration; (B) alteration in names and addresses of any of the persons authorised to accept service on behalf of a foreign limited liability partnership (FLLP) (C) alteration in the principal place of business in India of FLLP (D) cessation to have a place of business in India||Form 29||Form 29|
|Application for compounding of an offence under the Act||Form 31||Form 31|
|Form for filing addendum for rectification of defects or incompleteness||Form 32/||Form 32|
|Description||e-Form with Instruction kit||e-Form|
|Application for allotment of Director Identification Number||Form DIR-3||Form DIR-3|
|Intimation of change in particulars of Director to be given to the Central Government||Form DIR-6||Form DIR-6|