Limited liability partnership in India

The salient features of the LLP Act 2008 are:

  • LLP is a body corporate and a legal entity separate from its partners;
  • The LLP will have perpetual succession;
  • The mutual rights and duties of partners of an LLP inter se and those of the LLP and its partners shall be governed by an agreement between partners or between the LLP and the partners subject to the provisions of the LLP Act 2008;  
  • The LLP will be a separate legal entity, 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;
  • Indian Partnership Act, 1932 shall not apply to LLP.
  • The mutual rights between the partners of LLP are governed by the LLP agreement.

Essential requirements for incorporation of LLP:

 

The requisites for forming a LLP are:

  • Every LLP shall have at least two natural or juristic partners and shall also have at least two individuals as Designated Partners, of whom at least one shall be resident in India,
  • Atleast two persons shall be designated partners having DIPN. In case of body corporate as partners, their nominee can be act as designated partners. Out of two designated partners, one must be resident in India. (Who has stayed in India for a period of not less than one hundred and eighty two days during the immediately preceding financial year)

 

Incorporation Of Limited Liability Partnership


The Limited Liability Partnership may be incorporated in the following manner:

  1. The User must register himself on the website of Ministry of Corporate Affairs, developed for LLPservices, i.e.  www.llp.gov.in;
  2. All designated partners of the proposed LLP shall obtain “Designated Partner Identification Number (DPIN) / Director Identification Number (DIN)”;
  3. All designated partners of the proposed LLP shall obtain “Designated Partner Identification Number (DPIN) / Director Identification Number (DIN)”;
  4. Partner/Designated partner of LLP/proposed LLP, whose signatures are to be affixed on the e-forms has to obtain class 2 or class 3 Digital Signature Certificate (DSC) from any authorized certifying agency;
  5. Reserve a name for the LLP on the website;
  6. After the reservation of the name, Form-2 for “Incorporation Document and Statement” has to be filed;
  7. Form 3 (Information with regard to LLP agreement and changes, if any made therein) and Form-4 (Notice of Appointment of Partner/Designate Partner, his consent etc.) may be filed with the prescribed fee simultaneously at the time of filing Form-2 or within 30 days of the date of incorporation or within 30 days of such subsequent changes.

Liability of Partners


The liability of the partners in a LLP is limited to the extent of their agreed contribution in the LLP which may be of tangible or intangible nature or both tangible and intangible in nature.

Every partner is an agent of the LLP and not the other partners; hence neither the LLP nor other partners would be liable for the independent or un-authorized actions of other partners or their misconduct.

In case of any act committed by the LLP or any its partner with the intention to defraud the creditors or any other person or for any fraudulent purpose, the liability of the LLP and partners guilty of fraud would be unlimited for all or any of the debts or other liabilities of the LLP.

The liability of LLP shall be met out from the property of the LLP.

Financial Disclosures:


The LLP has to maintain books of accounts for prescribed period. A statement of accounts and solvency shall be filed by every LLP within thirty days from the end of six months from each financial year.

Accounts of LLP shall be audited in case its contribution exceeds 25 lakhs or its turnover exceeds 40 Lakhs.

Taxation of LLP:

LLP incorporated in India will be assessed as if it is a partnership firm. Remuneration paid to working partners is deductible at the hands of LLP within limits prescribed under section 40(b) of Income Tax Act, if the partnership is evidenced by an instrument specifying the individual shares of the partners and is for period beyond partnership deed.

Remuneration paid to partner over and above limits of section 40(b) will be taxed at hands of LLP but will be exempt at hands of partner.

Interest paid to partners is deductible at the hands of LLP within limits prescribed under section 40(b) of Income Tax Act if the Payment of interest is authorized by the partnership deed and interest does not pertain to period prior to partnership agreement and does not exceed 12%. Indian LLP will not be liable to wealth tax whereas foreign LLP would be liable to wealth tax.

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.


Partner’s Transferable Interest:

A partner can transfer wholly or partly his right to share of profit and loss of limited liability and to receive distributions in accordance with the limited liability partnership agreement.

The transfer of rights does not cause dissociation of partner from LLP or dissolution of the LLP. It does not either entitle the assignee to participate in the management or conduct of the business of the LLP.

Conversion into Limited Liability Partnership:

A firm, private company or an unlisted public company can convert into LLP in accordance with the provisions of the Act. After conversion and from the date of certificate of registration issued by the Registrar.

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 and the firm or the company,  shall be deemed to be dissolved.

Winding Up:

The LLP may be wound up either voluntarily or by the Tribunal to be established under the Companies Act, 1956. Winding up of LLP may be either voluntary or by the Tribunal. LLP so wound up may be dissolved. It may be wound up by the Tribunal if:

  • The limited liability decides so,
  • If the minimum number of partners had reduced to less than two for a period of more than six months,
  • If the LLP is unable to pay its debts,
  • If the LLP had acted against the sovereignty and integrity of India, the security of state and public order,
  • If the LLP had failed to file statement of accounts and solvency with the Registrar for five consecutive financial years,
  • If the Tribunal is of the opinion that it is just and equitable to wind up the LLP.

Compromise, Arrangement or Reconstruction of LLP:

On an application made by the LLP or its creditor or a partner, the Tribunal may pass an order sanctioning the compromise, arrangement or reconstruction of LLP between the LLP and its creditor or LLP and its partners.

Foreign Direct Investment in LLP:

The FDI in LLPs will be implemented, subject to the following conditions:

  • LLPs with FDI will be allowed, through the Government approval route, in those sectors/activities where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance related conditions.
  • LLPs with FDI will not be allowed to operate in agricultural/plantation activity, print media or real estate business.
  • LLPs with FDI will not be eligible to make any downstream investments.
  • An Indian company, having FDI, will be permitted to make downstream investment in LLPs only if both the company, as well as the LLP is operating in sectors where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance related conditions.
  • Foreign Capital participation in the capital structure of the LLPs will be allowed only by way of cash considerations, received by inward remittance, through normal banking channels, or by debit to NRE/FCNR account of the person concerned, maintained with an authorized dealer/authorized bank; and
  • Foreign Institutional Investors and Foreign Venture Capital Investors will not be permitted to invest in LLPs. LLPs will also not be permitted to avail External Commercial Borrowings.

Details of Fee:

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:

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

3.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:-

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

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






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