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CA. Kamlesh Vikamsey Limited Liability Partnership Presented by: CA Kamlesh Vikamsey

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A Presentation on the new LLP Act

TRANSCRIPT

Page 1: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Limited Liability Partnership

Presented by: CA Kamlesh Vikamsey

Page 2: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Indian history• 2003: Naresh Chandra Committee Report highlighted need for LLPs &

suggested application of LLPs to Service industry, Chartered Accountants,

Lawyers, Architects, etc.

• 2005: J J Irani Expert Committee on Company Law recommended introduction

of LLPs-suggested small enterprises be included in scope of LLP & there should

be a separate LLP Act

• 2006: LLP Bill introduced in Parliament

• 2007: Bill referred to Parliamentary Standing Committee (PSC) for examination

• 2008: Lok Sabha passes New LLP Bill as revised by PSC

Page 3: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Indian history• 2009: LLP Act, 2008 receives presidential assent & is published in Official

Gazette

• 2009: LLP Act, 2008 gets notified w.e.f March 31st, 2009

Page 4: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Different Chapters of the Act• Chapter I-Preliminary (Ss. 1 & 2)• Chapter II-Nature of LLP (Ss. 3-10)• Chapter III-Incorporation & Incidental Matters (Ss. 11-21)• Chapter IV-Partners & their Relations (Ss. 22-25)• Chapter V-Extent & Limitation of Liability of LLP & Partners

(Ss. 26-31)• Chapter VI-Contributions (Ss. 32 & 33)• Chapter VII-Financial Disclosures (Ss. 34-41)• Chapter VIII-Assignment & Transfer of Partnership Rights (S.

42)• Chapter IX-Investigation (Ss. 43-54)

Page 5: Llp Presentation Ksv

CA. Kamlesh Vikamsey

• Chapter X-Conversion to LLP (Ss. 55-58)• Chapter XI-Foreign Limited Liability Partnerships (S. 59)• Chapter XII-Compromise, Arrangement or Reconstruction of LLPs

(Ss. 60-62)• Chapter XIII-Winding Up & Dissolution (not notified as on date)

(Ss. 63-65)• Chapter XIV-Miscellaneous Provisions (Ss. 66-81)• First Schedule-Mutual Rights & Liabilities of Partners & LLP• Second Schedule-Conversion of Partnership Firm to LLP• Third Schedule-Conversion of Private Company to LLP• Fourth Schedule-Conversion of Unlisted Public Company to LLP

Different Chapters of the Act

Page 6: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Preliminary (Ch. I)• Short title, extent & commencement

This Act may be called the Limited Liability Partnership Act, 2008 It extends to the whole of India All sections have been notified as on March 31st, 2009, vide notification no. S.O. 891(E),

except- Clauses (c) and (u) of sub-section (1) of S. 2-Appellate Tribunal & Tribunal Extent of applicability of Section 31 in respect of ‘Tribunal’ S. 51-Application by Central Government for Winding-up of LLP Ch. X-Conversion to LLPs [Notified vide Notification no. S.O. 1323(E) dated May 22nd,

2009] Ch. XIII-Winding Up of LLPs S. 72-Jurisdiction of Tribunal & Appellate Tribunal Clauses (b), pertaining to its applicability to Ss. 51, 63 & 64; & (c) of S. 81 Second, Third & Fourth Schedule-Pertaining to Conversion of Firms & Companies

(except Listed Companies) to LLPs [Notified vide Notification no. S.O. 1323(E) dated May 22nd, 2009]

Page 7: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Preliminary (Ch. I)Important Definitions:• Body Corporate [S. 2 (1) (d)]:

‘means a company defined in section 3 of the Companies Act, 1956 and includes-(i) a limited liability partnership registered under this Act;(ii) a limited liability partnership incorporated outside India; and(iii) a company incorporated outside India,

but does not include-(i) a corporation sole;(ii) a co-operative society registered under any law for the time being in force; and(iii) any other body corporate (not being a company as defined in section 3 of the Companies Act, 1956 or a limited liability partnership as defined in this Act), which the Central Government may, by notification in the Official Gazette, specify in this behalf’

Page 8: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Preliminary (Ch. I)• Business [S. 2 (1) (e)]:

‘includes every trade, profession, service and occupation’

• Financial Year [S. 2 (1) (l)]:‘in relation to limited liability partnerships, means the period

from the 1st day of April of a year to the 31st day of March of the following year:Provided that in case of a limited liability partnership

incorporated after the 30th day of September of a year, the financial year may end on the 31st day of march of the year next following that year’

Page 9: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Preliminary (Ch. I)• Limited Liability Partnership Agreement [S. 2 (1) (o)]:

‘means any written agreement between the partners of the limited liability partnership or between the limited liability partnership and its partners which determines the mutual rights and duties of the partners and their rights and duties in relation to that limited liability partnership’

• Registrar [S. 2 (1) (s)]:‘means a Registrar, or an Additional, a Joint, a Deputy or an Assistant Registrar, having the duty of registering companies under the Companies Act, 1956’

Page 10: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Preliminary (Ch. I)• S. 2 (2):

‘Words and expressions used and not defined in this Act defined in the Companies Act, 1956 shall have the meanings respectively

assigned to them in that Act’

Page 11: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Nature of Limited Liability Partnership (Ch. II)• LLP is body corporate formed & incorporated under LLP Act

[S. 3 (1)]• LLP is legal entity separate from its partners [S. 3 (1)]• LLP has perpetual succession [S. 3 (2)]• Existence, Rights & Liabilities of LLP not affected by change in

partners [S. 3 (3)]• Indian Partnership Act, 1932 does not apply to LLPs [S. 4]• Partners Individuals / Body Corporate can be partners [S. 5] Minimum two partners [S. 6 (1)]

Page 12: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Nature of Limited Liability Partnership (Ch. II)• Designated Partners (DP) [S. 7 (1)] At least two DPs Only Individuals can be DPs At least one resident in India Every DP to obtain a Designated Partner Identification No. (DPIN)

• Responsibilities & Liabilities of DPs [S. 8] Responsible for doing all acts, matters & things required to be

done by LLP w.r.t compliance of LLP Act including filing of any document, return, statement & like report under LLP Act & as specified in LLP Agreement

Liable to all penalties imposed on LLP for any contravention of above

Page 13: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Nature of Limited Liability Partnership (Ch. II)• Changes in DPs [S. 9] LLP to appoint DP within 30 days of vacancy If no DP is appointed or if, at any time, there is only 1 DP, each

partner shall be deemed to be a DP• Penalty for Contravention [S. 10] For S. 7 (1): LLP & its every partner shall be fined > Rs. 10,000

(Maximum Rs. 5 Lacs) For Ss. 7 (4) & (5), 8 & 9: LLP & its every partner shall be fined >

Rs. 10,000 (Maximum Rs. 1 Lac)

Page 14: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Nature of Limited Liability Partnership (Ch. II)• Disqualifications of DPs• R. 9 (1): No person can be DP of LLP, if- He is adjudged as insolvent within preceding 5 years He has suspended payment to his creditors & not made any

composition with them within preceding 5 years He is convicted by Court for any offence including moral

turpitude & sentenced to imprisonment not less than 6 months He is convicted by Court for offence under Section 30 of LLP Act

Page 15: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Incorporation & Incidental Matters (Ch. III)• Incorporation Document [S. 11] Is among Prime Documents of LLP Must be submitted to registrar in ‘Form-2’ [R. 11] S. 11 (2) requires particular information to be contained in Incorporation

Document- Name of LLP Proposed Business of LLP Address of Registered Office (RO) Names & Addresses of Partners Names & Addresses of DPs Other Information as may be prescribed

• RO shall be place of all correspondence for LLP [S. 13 (1)] On Contravening provisions relating to RO, LLP & its every partner shall be

punishable with fine upto Rs. 25,000 but not less than Rs. 2,000 [S. 13 (4)]

Page 16: Llp Presentation Ksv

CA. Kamlesh Vikamsey

• Effect of Registration [S. 14]: LLP will be able to, in its own name- Sue & be sued Acquire, hold & develop or dispose off any property Have common seal Do & suffer such other acts & things as bodies corporate may lawfully do or suffer• Name of LLP must end with words ‘Limited Liability Partnership’ or acronym ‘LLP’ [S. 15 (1)]• Change in name of LLP [S. 17]• Penalty for improper use of words ‘Limited Liability Partnership’ or ‘LLP’ [S. 20] Punishable with fine of Rs. 50,000 but may extend upto Rs. 5 Lacs• Publication of name, address of RO, Registration No. & Statement of limited liability [S. 21]

Incorporation & Incidental Matters (Ch. III)

Page 17: Llp Presentation Ksv

CA. Kamlesh Vikamsey

• Procedure for formation of LLP: Check availability of name on site ‘llp.gov.in’ Acquire Digital Signature Certificate (DSC) Acquire DPIN by applying in prescribed ‘Form-7’ Apply for Reservation of Name in prescribed ‘Form-1’ Apply for Incorporation Document in prescribed ‘Form-2’ Alongwith Incorporation Document, submit application for- Information regarding LLP Agreement in ‘Form-3’ Appointment of Persons and their consent as such to act as

Partners / DPs in ‘Form-4’ & ‘Form-9’, respectively Receive Form-2 duly signed by Registrar & certificate from registrar

regarding incorporation, within 14 days of filing such documents LLP is ready to function

Incorporation & Incidental Matters (Ch. III)

Page 18: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Incorporation & Incidental Matters (Ch. III)

Page 19: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Partners & their Relations (Ch. IV)• Eligibility to be partner [S. 22]

Persons who subscribe to Incorporation Document By LLP Agreement

• Relationship of partners [S. 23] Rights & duties of partners with other partners & with LLP governed by LLP

Agreement In absence of any agreement, principles set out in First Schedule will apply

• Cessation of Partnership Interest In accordance with LLP Agreement [S. 24 (1)] By resignation notice in writing of 30 days [S. 24 (1)] On death, dissolution of LLP, or if he is of unsound mind or insolvent as

declared by court [S. 24 (2)]• Liability of Outgoing Partner [S. 24 (4)]

Page 20: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Partners & their Relations (Ch. IV)• Registration of changes in partners / details of partners to be

filed in prescribed time & in prescribed ‘Form-6’ [R. 22 (1)]

Page 21: Llp Presentation Ksv

CA. Kamlesh Vikamsey

First Schedule (Ch. IV)Relates to mutual rights & duties between partners & LLP & its partners absence of Agreement on such matters•Partners of LLP entitled to share equally in capital & profits / losses•Partners shall be indemnified by LLP in respect of payments made & liabilities incurred by him-

In ordinary & proper conduct of business of LLP In anything necessarily done for Preservation of business or property of LLP

•LLP shall be indemnified by Partners for any loss caused by his fraud in conduct of business of LLP•Partners may participate in management of LLP•Partners shall not be entitled to any remuneration for acting in business or management of LLP•No partner may be introduced without consent of all other partners•Any ordinary matter regarding LLP may be decided by resolution passed by majority of partners

Page 22: Llp Presentation Ksv

CA. Kamlesh Vikamsey

First Schedule (Ch. IV)• However, change in nature of business may be decided only by consent of all

partners• Every decision taken by LLP be recorded in minutes within 30 days of such decision• Minute Book be maintained & kept at RO of LLP• Partners must render true accounts & full information of all things affecting LLP to

any partner or his legal representative• Partners to account for & pay over all profits earned from business of similar

nature & competing with LLP, to LLP if there is no consent from LLP in that respect• Partners to account to LLP for any benefit derived by him without LLP’s consent,

from any transaction concerning LLP or from use of name, property or business connection of LLP

• No partner may be expelled by a majority unless there is an express power conferred by LLP Agreement to do so

• All disputes which cannot be resolved by LLP Agreement can be referred to for arbitration as per Arbitration and Conciliation Act, 1996

Page 23: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Liability of LLP & Partners (Ch. V)• Just like partnership, every partner is an agent; not of other

partners but of LLP [S. 26]• LLP not bound by unauthorized acts of partners in dealing with

person if that person knows that the partner had no authority or did not know him to be partner of LLP [S. 27 (1)]

• LLP liable in respect of wrongful acts or omissions of partners in course of its business or with its authority [S. 27 (2)]

• Obligation of LLP is solely an obligation of LLP & shall be met out of property of LLP [S. 27 (3) & (4)]

• Partners not personally liable [S. 28 (1)]• Liability of partner(s) committing wrongful acts or omissions will

be unlimited [S. 28 (2)]• Partnership by Holding out [S. 29]

Page 24: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Liability of LLP & Partners (Ch. V)• Unlimited Liability in case of fraud [S. 30]

If fraud done with knowledge / authority of LLP, LLP’s & partner’s liability will be unlimited. LLP’s liability = Partner’s liability

Otherwise, LLP will not be liable Imprisonment for 2 years & fine upto Rs. 5 Lacs

• Whistle Blowing [S. 31] Court / Tribunal may reduce penalty if partner / employee assists

Court / Tribunal

Page 25: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Contributions (Ch. VI)• Form of Contribution in any manner- in cash or in kind [S. 32 (1)]• Accounting & Disclosure of Contribution must also involve the

nature & amount of Contribution [S. 32 (2) & R. 23 (1)]• R. 23 (2): Contribution in kind must be valued by practicing CA or

CWA or approved valuer from panel maintained by Central Government

• Obligation to Contribute as per LLP Agreement [S. 33 (1)]• Creditor may enforce Original Obligation against partner in case if

he was unaware of compromise between partners [S. 33 (2)]

Page 26: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Financial Disclosures (Ch. VII)• Maintain proper books of accounts as prescribed in R. 24- Must disclose all sums of money expended & received & matters pertaining thereto Must record all assets & liabilities of LLP State all purchases & sales & record all information regarding inventories Other particulars which partners may decide

• Cash or Accrual; Double-Entry System of Accounting [S. 34 (1)]• Maintain books at RO for period of 8 years as per R. 24 (3)• Prepare ‘Statement of Accounts & Solvency’ in prescribed ‘Form-8’ within 6 months from

end of FY & must be signed by DPs [S. 34 (2)]• Must be filed with ROC alongwith prescribed fees• Audit as per prescribed rules [R. 24 (8)]• File annual return (Form-11) with ROC within 60 days from end of FY [R. 25 (1)]• Must be accompanied by certificate issued by CS confirming veracity of particulars /

statements in such return, if turnover exceeds Rs. 5 Crores or Contribution exceeds Rs. 50 Lacs, else certificate must be issued by DP [R. 25 (2)]

Page 27: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Assignment & Transfer of Partnership Rights (Ch. VII) • Right of partner to share profits is transferable / assignable (in

whole or in part) [S. 42 (1)]• Transfer does not imply that transferor / assignor has ceased to be

partner [S. 42 (2)]• Likewise, transferee / assignee does not have right to participate in

management [S. 42 (3)]• Transferee / assignee has no right to obtain any information of

transactions of LLP [S. 42 (3)]

Page 28: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Investigation (Ch. IX)• [S. 43 (1) & (3)]: Central Government (CG) may appoint one or more inspector(s) to

investigate into affairs of LLP & report thereon, if- Not less than 1/5 th of partners apply for investigation on payment of prescribed

security to Central Government LLP applies for investigation CG is of opinion that-

Business of LLP is with intent to defraud its Creditors, Partners or any other Person Affairs of LLP are not being conducted in accordance with provisions of this Act On receipt of Report of Registrar or any other Regulatory Agency, there exist

sufficient reasons that affairs of LLP ought to be investigated• Inspector cannot be partnership firm, body corporate or other association [S. 45]• Investigator has power to investigate in matters of any entity which has been

associated, or is associated, to LLP unless it is irrelevant to do so [S. 46 (1)] Investigator must obtain prior approval of CG [S. 46 (2)]

Page 29: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Investigation (Ch. IX)• [S. 47 (1)]: It shall be duty of DPs & Partners to-

Preserve & produce before investigator all documents relating to LLP or, as case may be, any other entity

Give assistance to investigator in connection to investigation• Investigator has power to keep such documents in custody upto 30 days

[S. 47 (3)]• Failure to comply with requirements as above will result in punishment

of person in default with fine upto Rs. 25,000 but not less than Rs. 2,000 & further fine of upto Rs. 500 but not less than Rs. 50 for everyday of default [S. 47 (5)]

Page 30: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Investigation (Ch. IX)• [S. 48]: Investigator has power to seize documents relating to LLP, if he

believes that such documents may be- Destroyed Mutilated Altered Falsified or Secreted• Investigator shall make reports (Interim & Final) to CG & such report

such act as evidence in any legal proceeding [S. 49 & 54]• Application by CG for Winding-up of LLP pursuant to investigation [S.

51]• Expenses of Investigation [S. 53]

Page 31: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Conversion of Firm to LLP (Ch. X)This part is governed by Section 55 & Second Schedule & is notified vide notification no. S.O. 1323(E) w.e.f May 31st, 2009•All partners of LLP must be partners of original firm & no one else•On such conversion- All assets & liabilities of firm would get vested in LLP Firm stands dissolved Will be removed from records of Registrar of Firms Every partner will continue to be personally liable jointly & severally with LLP,

for liabilities prior to conversion / arising out of contract entered prior to conversion

Partner to be indemnified by LLP in respect of such liability subject to anything contrary in LLP Agreement

•Every official correspondence of LLP for 1 year, must bear a statement that it was, from the date of registration converted from a firm into an LLP alongwith name & registration, if applicable, of firm from which it was converted

Page 32: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Conversion of Firm to LLP (Ch. X)• Partnership Firm proposing to convert to LLP must apply to ROC in

prescribed ‘Form-17 (Part A)’ alongwith Statement of Partners in ‘Form-17 (Part B)’ [R. 38 (1)]

• ROC must issue certificate of registration in ‘Form-19’ [R. 32 (1)]• Upon receipt of ‘Form-19’, LLP must apply, within 15 days of

registration, to Registrar of Firms to strike-out name of Firm in prescribed ‘Form-14’ [R. 33 & 38 (3)]

For ‘Conversion of Firm to LLP’, the relevant Rule 38 is notified vide Notification no. S.O. 1324(E) dated May 22nd, 2009 w.e.f May 31st, 2009

Page 33: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Conversion of Companies to LLP (Ch. X)This part is governed by Section 56 (for private companies) & Section 57 (for unlisted public companies)•Governed by Third Schedule in respect of Private Companies•Governed by Fourth Schedule in respect of Unlisted Public Companies•Company can be converted into LLP provided- All partners of LLP must be shareholders of that company & no one else There is no security interest in its assets

•Upon conversion, all assets & liabilities get vested in LLP and principally all other provisions are similar as that for firms•Listed Public Company cannot be converted into LLP•Application for conversion to be made to ROC in prescribed ‘Form-18 (Part A)’ alongwith Statement of Shareholders in ‘Form-18 (Part B)’ [R. 39(1) & 40(1)]•Same procedures as regards conversion of FirmsAbove referred Sections & Relevant Schedules are notified vide notification no. S.O. 1323 (E) w.e.f May 31st, 2009For ‘Conversion of Companies to LLP’, the relevant Rules 39 & 40 are notified vide Notification no. S.O. 1324(E) dated May 22nd, 2009 w.e.f May 31st, 2009

Page 34: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Foreign LLPs (Ch. XI)• Foreign Limited Liability Partnerships [S. 59]

LLP Act gives power to CG to make rules for establishment of place of business of Foreign LLPs & conduct of business

Rules regarding setting up of Foreign LLPs in India is provided in Chapter XI of LLP Rules, 2009

• R. 18 (3) provides that Foreign LLPs may reserve name by which they are known in their country by application in ‘Form-25’ This reservation will be valid for 3 years & must be renewed

• R. 34 (1) provides for application to be filed with ROC alongwith prescribed documents in prescribed ‘Form-27’ within 30 days from establishment of business in India

• Every Foreign LLP must file Statement of Accounts & Solvency in ‘Form-8’ within 30 days from end of 6 months of FY [R. 34 (4)]

Page 35: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Compromise, Arrangement or Reconstruction of LLPs (Ch. XII)• Compromise or Arrangement of LLPs [S. 60]• Power of Tribunal to enforce Compromise or Arrangement [S. 61]• Provisions for Reconstruction or Amalgamation of LLPs [S. 62]

Page 36: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Winding Up and Dissolution (Ch. XIII)This Chapter has not been notified as yet• Winding Up and Dissolution [S. 63]• Circumstances of Winding Up [S. 64]• Rules relating therein [S. 65]

Page 37: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Miscellaneous (Ch. XIV)• Transactions of Partner with LLP [S. 66]

Partner who transacts or lends money to LLP has same rights &obligations as a person who is not partner

• Application of provisions of Companies Act [S. 67 & Q. 55 of FAQs]• E-Filing of Documents [S. 68]• Payment of Additional Fee [S. 69]• Enhanced Punishment [S. 70]• Application of Other Laws not barred [S. 71]• Jurisdiction of Tribunal & Appellate Tribunal [S. 72]• Offences & Penalties [Ss. 73, 74 & 76]• Powers of Registrar to Strike-off names of Defunct LLPs [S. 75 & Q. 53 of FAQs]• Jurisdiction of Courts [S. 77]• Miscellaneous Powers to make Rules, amend Schedules & remove difficulties [Ss. 78,

79 & 80]• Transitional Provisions [S. 81]

Page 38: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• Companies can apply for conversion only if there is no Security

Interest on its assets• Why introduce a restrictive clause in case of Companies?

Page 39: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• According to S. 71, provisions of LLP Act will not be in derogation

to provisions of other Acts• The question which arises is as to whether CAs are allowed to

form LLPs or convert their firms into LLPs?• As per Chartered Accountants Act & Regulations, at various

places, the words ‘partnership’ & ‘firm’ are used without assigning any particular meaning to it

• Will a LLP meet the requirements of CA Act & Regulations?• This would require amendments to certain Acts which are

relevant to professional services [Q. 56 of FAQs]

Page 40: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• If firm of CAs convert into LLP, what will be auditee’s stand?• Does conversion amount to ‘Casual Vacancy’ as per Companies

Act?• Would another resolution be required to appoint an LLP as

auditors?• As per Clause 14 of Second Schedule, appointment of firm in any

role or capacity shall operate as if LLP was appointed Effect of such Clause?

• Some clarifications / amendments are required in the Companies Act

Page 41: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• S. 36 of LLP Act provides for inspection of all documents including

Statement of Accounts & Solvency filed by LLP with ROC, by any person

• Question arises as to whether this is acceptable to Professional Firms like lawyers, CAs, CWAs, etc?

Page 42: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• The LLP Act has incorporated procedures for conversion of

companies to LLP by way of Third & Fourth Schedules• However, there is no procedure for LLPs to be converted to

companies• Amendments required to be made in this regard in Companies Act

[Q. 46 of FAQs]

Page 43: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• As per Clause 5 of Second Schedule, LLP, upon receipt of ‘Form-19’

from ROC must submit an application to concerned Registrar of Firms in prescribed ‘Form-14’ for striking-out name of Firm from its Records

• Is this required in case of Unregistered Firms?

Page 44: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• Tax treatment not specified in Finance Bill, 2009• It is expected to be specified in next Finance Bill which the New

Government will introduce in the Parliament• Till then tax treatment is not known, i.e,- Whether it will be taxed like a firm or pass through structure in

the hands of partners? Will remuneration paid to partners / interest on capital be

allowed as a deduction in the hands of LLP? For Conversion of firm or Company to LLP? On amalgamation of LLPs?

Page 45: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Some Issues• Whether Stamp Duty is payable on Incorporation of LLPs?• If so, how much?• Whether Companies & Firms will be exempt from Stamp Duties

upon conversion to LLPs?• It must be noted that Stamp Duties are legislations of respective

States & therefore clarity is needed from them [Q. 47 of FAQs]

Page 46: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Comparison with CompaniesBasis Company LLPGoverning Law Companies Act, 1956 Limited Liability Partnership Act,

2008Name Must contain suffix ‘Ltd’ or ‘Pvt

Ltd’Must contain suffix ‘LLP’

Common Seal Common Seal is compulsory Common Seal is optional

Organizational Structure

Rigid & governed by Companies Act

Flexible & governed by LLP Agreement

Appointment of Auditors

Specific Resolution required for appointment of auditors at every AGM

Auditors shall be deemed to be re-appointed in case no specific appointment is made (unless otherwise decided)

Audit All companies are subject to audit of accounts

Only LLPs having turnover of more than Rs. 40 Lacs or contribution of more than Rs. 25 Lacs are subject to audit of accounts

Page 47: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Comparison with Partnership FirmsBasis Partnership Firms LLPGoverning Law Partnership Act, 1932 Limited Liability Partnership Act,

2008Registration Not Compulsory; but is preferred CompulsoryCreation By partnership Agreement By LawLegal Status Partners collectively known as

‘Firm’; no separate legal statusLLP has separate legal status apart from partners

Succession Firm would cease to exist on change in partnership, unless otherwise provided in agreement

LLP would not be affected on change in partnership (Perpetual Succession)

Ownership of Assets

Partnership cannot own assets in its name; assets must be in name of Partners

LLP can own assets in its own name

Liability of Partners

Unlimited Limited

Minor’s Position Minor can be admitted to benefits of Partnership

Law silent on position of Minors

Page 48: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Tax Proposals in the Finance Bill (No. 2), 2009• Tax treatment of LLPs to be same as that of ‘Partnership Firms’• S. 2 (23) of Income Tax Act, 1961 (IT Act) to include ‘LLP’ & its ‘Partners’• Partner’s share of profit will be exempt [S.10 (2A) of IT Act]• Partner’s remuneration will be subject to newly proposed limits-

• DPs must verify & sign on Income Tax Returns. In absence of DPs, any partner must sign & verify [S. 140 of IT Act]

• In case LLP is wound up, every partner will be liable for payment of taxes due unless he can prove that non-recovery cannot be attributed to his acts [S. 167C of IT Act]

• Capital Gains not to be attracted if mutual rights & obligations of partners remain same & if there is no transfer of Asset / Liability after conversion. Otherwise, ‘Capital Gains’ provisions will be attracted

Slab of Book Profit Remuneration AllowableOn first Rs. 3 lacs or in case of loss Rs. 1.5 lacs or 90% of book profits, whichever

is higher

On balance of book profit 60% of book profits

Page 49: Llp Presentation Ksv

CA. Kamlesh Vikamsey

In case of any difficulty…Office of the RegistrarLimited Liability Partnerships Ministry of Corporate Affairs, 3rd Floor, “Paryavaran Bhawan”, CGO Complex, Lodhi Road, New Delhi (India)- 110003

Phone - +91-11-24362189

Email:[email protected] ,[email protected]

Page 50: Llp Presentation Ksv

CA. Kamlesh Vikamsey

Thank you…Thank you…