Author: Abhinav Gaur, Research Associate
The concept of Limited Liability Partnership has been a recent phenomenon in India, introduced in India by way of the Limited Liability Partnership Act, 2008. A Limited Liability Partnership, popularly known as LLP is an amalgamation of the advantages of both the limited liability of a Company and dynamics of a Partnership into a single form of organization with low compliance costs. The LLP concept stands witness to developments and adaptations in many other countries like United Kingdom, USA, various Gulf countries, Australia and Singapore.
In an LLP a partner is not responsible or liable for another partner’s misconduct or negligence. In an LLP, all partners have limited liability for each individual’s protection within the partnership, as to that of the shareholders of a limited company. However, unlike the company shareholders, the partners have the right to manage the business substantially and directly. An LLP also restricts and limits the personal liability of a partner for the errors, omissions, incompetence, or negligence of the LLP’s employees or other agents.
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 STRUCTURE: A BOON
The concept of L.L.P. in India certainly has innumerable advantages over proprietorships, partnerships and limited companies, as elaborated below.
- Limited Liability: The most attractive and most looked for benefit of trading/doing business via LLP is the limited liability conferred upon the partners. As a sole trader or partnership business, personal assets of the proprietor or partners is always at risk in the event of a failure of the business, but this is not the case when business is an LLP structure. Unlike proprietorship and partnership, if an LLP becomes insolvent and is wound up, only the assets of the LLP are used to clear its debts. The partners of LLP have no personal liabilities and are not made bankrupt.
- No Audit Requirements: Audit is not required unless capital exceeding Rs. 25 lakh or turnover exceeding Rs. 40 lakh.
- Legal Entity/Status or Recognition: An LLP is a legal entity, a juristic person established under the Act. It has its existence separate from its partners. Corporate entity status enables LLP to be taken more seriously than a proprietorship/partnership status does.
- Taxation: LLPs are taxed like general partnership firms. LLPs pay an effective tax of 30.9%. They are exempted from 10% surcharge. LLPs tax payment is lower than that of companies, which pay a 33.99% tax on profits. The tax will be imposed only on 10% or 40% of the LLP’s income, since the firm will be allowed to pay the balance 90% or 60% to the partners as remuneration. This means, the partners will have to pay tax on the amount paid to them. So, there will be no double taxation of income. Unlike Private or Public Companies, no requirement for payment of Dividend distribution/Corporation Tax on distribution of income/profits among partners and there is no requirement as to Minimum Alternate Tax.
But, few disadvantages which are associated with this utopian model are:
- LLP cannot raise funds from Public.
- Any act of the partner without the other may bind the LLP.
- Under some cases, liability may extend to personal assets of partners.
- No separation of Management from owners.
FORMATION OF AN LLP
Pre-requisites for registering a LLP
- Minimum 2 Partners (Individual or body corporate)
Partner of LLP can be consisted of Companies incorporated in and outside India LLP incorporated in and outside India Individuals Resident in and outside India.
- Minimum 2 Designated Partners who are individuals and at least one of them should be resident in India.
A person or nominee of a body corporate, intending to be appointed as who is appointed as designated partner of LLP should hold a Designated Partner Identification Number (DPIN) allotted by the Ministry of Corporate Affairs.
- Digital Signature Certificate
All forms for registration of LLP shall be filed online after signing digitally and for this purpose, one of the designated partners shall take digital signature certificate.
- LLP Name
Name gives a face to a business, under name and seal of which it operates its businesses and is recognized in the market. Thus, it should be ensured selected name should satisfy LLP Name Guidelines of Ministry of Corporate Affairs.
- LLP Agreement
Like partnership, partners of LLP can frame agreement for defining their terms, profit sharing ratio etc. The basic contents of Agreement are, Name of LLP, Name of Partners and Designated Partners, and Form of contribution, Profit Sharing ratio and Rights and Duties of Partners. In case no agreement is entered into, the rights & duties as prescribed under Schedule I to the LLP Act shall be applicable. It is possible to amend the LLP Agreement but every change made in the said agreement must be intimated to the Registrar of Companies.
- Registered Office
The Registered office of the LLP is the place where all correspondence related with the LLP would take place, though the LLP can also prescribe any other for the same. A registered office is required for following purposes. At the time of incorporation, it is necessary to submit proof of ownership or right to use the office as its registered office with the Registrar of Companies.
Registration of an LLP
The procedure is a five step process, as elucidated below:
Step- I The number of partners of the LLP should be as stated above.
Step- II The partners should obtain DPIN and Digital Signatures.
Step-III After the finalization of name, an application of name availability has to be filed in form 1 with www.llp.gov.in for approval. It is to be noted that the selection of name is subject to Guidelines issued by MCA.
Step-IV LLP agreement has to be drafted line with LLP Act. It is not mandatory to file LLP agreement at the time of registration and same can be file within 30 days. If no agreement is framed, provisions of Schedule I of the LLP Act shall be applicable.
Step- V The following documents along with required attachments has to be filed with www.llp.gov.in; Form 2, 3, 4.
Above said documents are required to be filed after signing digitally. After verification, registrar will register all documents and issue Certificate of Incorporation.
The passing of the Limited Liability Partnership Act, 2008 is a proof of the fact that India is vigilantly ready to meet new dynamics of market across the globe. India from time to time have stood witness to the fact that it is the recognition of the changing needs of the businesses in today’s times, that keeps an economy flourish not only domestically but also flex its muscles internationally.
If it Act is implemented properly, the introduction of the LLP will provide a helpful new option for professional partnerships which are anxious about their exposure to liability. In view of the growth of Indian Service industry in recent times, LLPs would further contribute to the growth of the service industry and a large number of existing companies, public as well as private, are expected to convert into LLPs with a view to have access to the benefits of the LLP. The Government of India has made an Endeavour to create a facilitating environment for entrepreneurs, service providers and professionals to meet the global competition; however it needs to be seen how far the change is useful.