Introduction: The Ministry of Corporate Affairs has issued a significant notification on November 9, 2023, introducing the Limited Liability Partnership (Significant Beneficial Owners) Rules, 2023. These rules, conferred under section 79 of the Limited Liability Partnership Act, 2008, aim to regulate and identify significant beneficial owners in Limited Liability Partnerships (LLPs).
Detailed Analysis: 1. Short Title and Commencement: The rules, titled the Limited Liability Partnership (Significant Beneficial Owners) Rules, 2023, come into effect upon their publication in the Official Gazette.
2. Applicability: These rules apply to any Limited Liability Partnership, outlining their scope within the LLP framework.
3. Definitions: Definitions crucial to understanding the rules, such as “control,” “fees,” “notification,” “partnership entity,” and “significant beneficial owner,” are clearly elucidated.
4. Duty of Reporting LLP: Reporting LLPs must take steps to identify significant beneficial owners and ensure compliance through declarations in Form No. LLP BEN-1.
5. Declaration of Significant Beneficial Ownership: Individuals with significant beneficial ownership must file declarations within specific timelines, as outlined in Form No. LLP BEN-1.
6. Return and Register: Upon receiving declarations, reporting LLPs must file returns with the Registrar (Form No. LLP BEN-2) and maintain a register of significant beneficial owners (Form No. LLP BEN-3).
7. Notice and Application to Tribunal: LLPs can issue notices seeking information (Form No. LLP BEN-4) and apply to the Tribunal in case of non-compliance or unsatisfactory information.
8. Non-applicability: Certain entities, such as government bodies and regulated investment vehicles, are exempt from these rules.
Conclusion: The Limited Liability Partnership (Significant Beneficial Owners) Rules, 2023, mark a significant step towards transparency and accountability in LLPs. It establishes clear procedures for identifying, declaring, and managing significant beneficial ownership, ensuring compliance with the Companies Act, 2013. LLPs must promptly adapt to these rules to avoid legal implications and contribute to a more robust corporate governance framework.
*****
MINISTRY OF CORPORATE AFFAIRS
NOTIFICATION
New Delhi, the 9th November, 2023
G.S.R. 832(E).- In exercise of the powers conferred by section 79 of the Limited Liability Partnership Act, 2008 (6 of 2009), the Central Government hereby makes the following rules, namely :-
1. Short title and commencement.- (1) These rules may be called the Limited Liability Partnership (Significant Beneficial Owners) Rules, 2023.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Applicability.- The provisions of these rules shall apple to any Limited Liability Partnership.
3. Definitions.- (1) In these rules, unless the context otherwise requires,-
(a) “Act” means the Limited liability Partnership Act. 2008 (6 of 2009);
(b) “Annexure means the Annexure to these rules;
(c) “control” shall include the right to appoint majority of the designated partners or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their contribution or management rights or limited liability partnership agreements or other agreements or in any other manner;
(d) —fees— means the fees as specified in the Limited Liability Partnership Rules, 2009;
(e) “Form” or “e-form” means a form set forth in the Annexure to these rules; (1) “majority stake” means;-
(i) holding more than one-half of the equity share capital in the body corporate; or
(ii) holding more than one-half of the contribution in a partnership entity; or
(iii) holding more than one-half of the voting rights in the body corporate; or
(iv) having the right to receive or participate in more than one-half of the distributable dividend or distributable profits or any other distribution by the body corporate including a partnership entity as the case may be;
(g) “notification- means the notification number G.S.R. 110 (E). dated the llth Fehruar. 2022;
(h) –partnership entity” means a partnership firm registered under the Indian Partnership Act, 1932 (9 of 1932) or a limited partnership registered under the Act:
(i) “reporting limited liability partnership” means a limited liability partnership required to comply with the requirements of section 90 of the Companies Act, 2013 as modified by the notification;
(j) “section” means a section of Act and includes a section of the Companies Act. 2013. as modified by the notification;
(k) “significant beneficial owner” in relation to a reporting limited liability partnership. means an individual who acting alone or together or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting limited liability partnership. namely:-
(i) holds indirectly or together with any direct holdings. not less than ten per cent of the contribution;
(ii) holds indirectly or together with any direct holdings, not less than ten percent of voting rights in respect of the management or policy decisions in such limited liability partnership;
(iii) has right to receive or participate in not less than ten per cent of the total distributable profits, or any other distribution, in a financial year through indirect holdings alone or together with any direct holdings;
(iv) has right to exercise or actually exercises, significant influence or control. in any manner other than through direct-holdings alone:
Explanation I.- For the purpose of this clause, if an individual does not hold and right or entitlement indirectly under sub-clauses (i), (ii), (iii) or (iv). he shall not he considered to be a significant beneficial owner.
Explanation II.- For the purpose of this clause, an individual shall he considered to hold a right or entitlement directly in the reporting limited iabi partnership. if he satisfies any of the following criteria, namely:-
(i) the contribution in the reporting limited liability partnership representing such right or entitlement are held in the name of the individual:
(ii) the individual holds or acquires a beneficial interest in the contribution of the reporting limited liability partnership under sub-rule (2) of rule 22B of the Limited Liability Partnership Rules, 2009 and has made a declaration in this regard to the reporting limited liability partnership.
Explanation III.- For the purpose of this clause, an individual shall be considered to hold a right or entitlement indirectly in the reporting limited liability partnership, if he satisfies any of the following criteria, in respect of a partner of the reporting limited liability partnership. namely: –
(i) where the partner of the reporting limited liability partnership k a body corporate (whether incorporated or registered in India or abroad) other than a limited liability partnership. and the individual.-
(a) holds majority stake in that partner: or
(b) holds majority stake in the ultimate holding company (whether incorporated or registered in India or abroad) of that partner;
(ii) where the partner of the reporting limited liability partnership is a Hindu undivided family (through karta), and the individual is the karta of the Hindu undivided family :
(iii) Where the partner of the reporting limited liability partnership is a partnership entity (through itself or a partner), and the individual,-
(a) is a partner; or
(b) holds majority stake in the hod% corporate which is a partner of the partnership entity; or
(c) holds majority stake in the ultimate holding company of the body corporate which is a partner of the partnership entity.
(iv) where the partner of the reporting limited liability partnership is a trust (through trustee), and the individual,-
(a) is a trustee in case of a discretionary trust or a charitable trust;
(b) is a beneficiary in case of a specific trust;
(c) is the author or settlor in case of a revocable trust.
(v) where the partner of the reporting limited liability partnership is.-
(a) a pooled investment vehicle; or
(b) an entity controlled by the pooled investment vehicle,
based in member State of the Financial Action Task Force on Money Laundering and the regulator of the securities market in such member State is a member of the International Organisation of Securities Commissions, and the individual in relation to the pooled investment vehicle,-
(A) is a general partner; or
(B) is an investment manager; or
(C) is a chief executive officer where the investment manager of such pooled vehicle is a body corporate or a partnership entity.
Explanation IV – Where the partner of a reporting limited liability partnership is,
(i) a pooled investment vehicle; or
(ii) an entity controlled by the pooled investment vehicle,
based in a jurisdiction which does not fulfil the requirements referred to in clause (v) of Explanation III, the provisions of clause (i) or clause (ii) or clause (iii) or clause (iv) of Explanation III, as the case may be, shall apply.
Explanation V.- For the purpose of this clause, if any individual, or individuals acting through any person or trust, act with a common intent or purpose of exercising any rights or entitlements, or exercising control or significant influence, over a reporting limited liability partnership, pursuant to an agreement or understanding, formal or informal, such individual, or individuals, acting through any person or trust, as the case may be, shall be deemed to be “acting together”.
(I) “significant influence” means the power to participate, directly or indirectly, in the financial and operating policy decisions of the reporting limited liability partnership but is not control or joint control of those policies.
(m) “ultimate holding company” is a holding company as defined under clause (46) of section 2 of the Companies Act, 2013, which is not a subsidiary of any other body corporate.
(2). The words and expressions used in these rules but not defined shall have the meaning respectively assigned to them in the Limited Liability Partnership Act, 2008 (6 of 2009).
4. Duty of the reporting limited liability partnership.- (1) Every reporting limited liability partnership shall take necessary steps to find out if there is any individual who is a significant beneficial owner, in relation to that reporting limited liability partnership, and if so, identify him and cause such individual to make a declaration in Form No. LLP BEN-I .
(2) Without prejudice to sub-rule (1), every reporting limited liability partnership shall in all cases where its partner (other than an individual), holds not less than ten per cent. of its-
(a) contribution; or
(b) voting rights; or
(c) right to receive or participate in the distributable profits or any other distribution payable in a financial year,-
give notice to such partner in Form No. LLP BEN-4, seeking information in accordance with sub-section (5) of section 90 of the Companies Act, 2013 as applied to the limited liability partnership as per the notification.
5. Declaration of significant beneficial ownership.- (1) On the commencement of these rules, every individual who is a significant beneficial owner in a reporting limited liability partnership. shall tile a declaration in Form No. LLP BEN-I to the reporting limited liability partnership within ninety days from such commencement.
(2) Every individual, who subsequently becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change shall file a declaration in Form No. Li .P BEN-1 to the reporting limited liability partnership, within thirty days of acquiring such significant beneficial ownership or any change therein.
(3) Where an individual becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change, within ninety days of the commencement of these rules, it shall be deemed that such individual became the significant beneficial owner or any change therein happened on the date of expiry of ninety days from such commencement, and the period of thirty days for filing will be reckoned accordingly.
6. Return of significant beneficial owners in contribution.- Upon receipt of declaration under rule 5, the reporting limited liability partnership shall file a return in Form No. LLP BEN-2 with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of such declaration by it. along with the fees as prescribed in the Limited Liability Partnership Rules. 2009.
7. Register of significant beneficial owners.- (1) The limited liability partnership shall maintain a register of significant beneficial owners in Form No. LLP BEN-3.
(2) The register shall be open for inspection during business hours, at such reasonable time of not less than two hours. on every working day as may be decided by limited liability partnership agreement, or by partners of the limited liability partnership on payment of such fee as may be specified by the limited liability partnership but not exceeding fifty rupees for each inspection.
8. Notice seeking information about significant beneficial owners.- A limited liability partnership shall give notice in Form No. LLP BEN-4 seeking information in accordance with sub-section (5) of section 90 as applied to the limited liability partnership by the notification.
9. Application to the Tribunal.- The reporting limited liability partnership shall apply to the Tribunal.
(i) where any person fails to give the in lOrmat ion required by the notice in Form No.1,1,13 BEN-4, within the time specified therein: or
(ii) where the information given is not satisfactory, under sub-section (7) of section 90 of Companies Act, 2013 for order directing that the contribution in question be subject to such restrictions as Tribunal deems fit, including-
(a) restrictions on the transfer of interest attached to the contribution in question:
(b) suspension of the right to receive profits or any other distribution in relation to the contribution in question:
(c) suspension of voting rights in relation to the contribution in question:
(d) any other restriction on all or any of the rights attached with the contribution in question
10. Non-applicability.- These rules shall not apply to the extent the contribution of the reporting limited liability partnership is held by.-
(a) the Central Government. State Government or any local authority:
(b) (i) a reporting limited liability partnership. or
(ii) a body corporate, or
(iii) an entity.
controlled by the Central Government or by one or more State Government. or partly by the Central Government and partly by one or more State Government:
(c) an investment vehicles registered with. and regulated by the Securities and Exchange Board of India. such as mutual funds, alternative investment funds (Alf:). Real Estate Investment Trusts (REITs), Infrastructure Investment Trust (InVITs).
(d) an investment vehicles regulated by the Reserve Bank of India. or the Insurance Regulatory and Development Authority of India. or the Pension Fund Regulatory and Development Authority.
Annexure
[See rule 3(b)]
Form No. LLP BEN-1
Declaration by the beneficial owner who holds or acquires significant beneficial ownership in Contribution
[Pursuant to section 90(1) of the Companies Act, 2013 and Rule 5 of the Limited Liability Partnership (Significant Beneficial Owners) Rules, 2023]
To
Name of the Limited Liability Partnership:
Registered office address:
1. Purpose of filing the form (choose any one)
- For declaration of Significant Beneficial Ownership under Section 90 of the Companies Act, 2013.
- For Change in Significant Beneficial Ownership under Section 90 of the Companies Act, 2013.
ID of the Significant Beneficial Owner ____________
2. Particulars of the holder of the significant beneficial interest:
|
Name of the Significant Beneficial Owner (Given name and last Name) |
|
| Address and Email id | |
| Date of Birth/Age | |
| Father’s/ Mother’s/Spouse’s name | |
| Occupation | |
| Nationality | |
| Passport No. (in case of foreign national) | |
| PAN | |
| DIN/DPIN (in case of holding directorship/designated partner in body corporate) |
3. Nature of indirect holding or exercise of right in the reporting Limited Liability Partnership through partner of the reporting LLP (where more than one repeat this para of the Form)
a. Type of Partner (Company/ LLP/Any other Body Corporate/ HUF/Partnership firm/Discretionary Trust/Charitable trust/Specific Trust/Revocable Trust /Pooled Investment vehicle (PIV) / Entity controlled by PIV):
b. Corporate Identity number (CIN) or Limited Liability Partnership Identification number (LLPIN) or any other registration number allotted by the regulator established under the Act:
c. Name of Partner:
d. Address:
Line I …………………………………………………………………………..
Line II …………………………………………………………………………..
City …………………………
Country …………………………
State …………………………
Pin code…………………………
e. Nature of indirect holding or exercise of right in the reporting LLP:
|
By virtue of Contribution |
% |
| By virtue of voting rights in contribution | ok |
| By virtue of rights in distributable profits or any other distribution | °A |
| By virtue of exercise of control (attach copy of agreement) | |
| By virtue of exercise of significant influence (attach copy of agreement) |
c. Status of significant beneficial owner in the partner of the reporting LLP (mention applicable/Not Applicable)
|
Individual in case of company or any other body corporate |
|
| Designated Partner or Partner in case of LLP or partnership firm | |
| Karta in case of HUF | |
| Trustee in case of a discretionary trust or charitable trust | |
| Beneficiary in case of a specific trust | |
| Author or settlor in case of a revocable trust | |
| General Partner, Investment Manager or CEO in case of pooled investment vehicle or entity controlled by pooled investment vehicle |
g. In case the partner is a partnership firm or LLP, specify whether significant beneficial owner: (Yes/No)
| is a designated partner/partner | |
| holds majority stake in the body corporate partner | |
| holds majority stake in the ultimate holding company of the body corporate partner |
h. In case the partner is a company or any other body corporate, specify whether significant beneficial owner holds: (Yes/No)
|
majority stake in such company or body corporate |
|
|
majority stake in the ultimate holding company of such company or body corporate |
i. Whether Significant Beneficial Owner has any direct holding or right in the reporting LLP: 0 Yes 0 No
If Yes enter details (In percentage):
|
By virtue of contribution |
|
| By virtue of voting rights in contribution | |
| By virtue of rights on distributable profits or any other distribution | |
| By virtue of exercise of control (attach copy of agreement) | |
| By virtue of exercise of significant influence (attach copy of agreement) |
Date:
Place:
Signature of the holder of the significant beneficial interest
Attachments:
Form No. LLP BEN-2 – Return to the Registrar in respect of declaration under section 90
Form No. LLP BEN-3 – Register of beneficial owners holding significant beneficial interest
Form No. LLP BEN-4
[F. No.17/30/2018-CL-V]
(Manoj Pandey)
Joint Secretary to the Government of India
