FORMATION OF LIMITED LIABILITY PARNERSHIP

Transcription

1 FORMATION OF LIMITED LIABILITY PARNERSHIP WHAT IS LIMITED LIABILITY PARTNERSHIP? The Limited Liability Partnership (LLP) is an incorporated business organization, which possesses elements of both a Partnership Firm and a Limited Company. In limited liability partnership, some of its partners have limited liability like shareholders to a corporation. However, in some countries, there is at least one partner with unlimited liability. Again, the designated partners to LLP have the right to manage their internal and external business affairs directly, in accordance with the LLP Agreement. Its every partner has its own responsibilities and liabilities, and one is not responsible or liable for any misconduct, negligence, or delinquency of other partners to LLP. The Limited Liability Partnerships are prominent and popular form of doing businesses in countries of all across the world. These LLPs are elegant and easy means of combining entrepreneurial initiative with requisite capital and other resources, the professional expertise, and creative knowledge about the business concerned. The taxation liabilities of LLP are different, and generally less than that of the business corporations. Other benefits of limited liability partnerships are outlined in the section below. BENEFITS OF LIMITED LIAIBLITY PARTNERSHIP The outstanding salient features or benefits of the limited liability partnerships are: A legally recognized, separate entity Minimum Capital shall be Rs 10,000 Limited liability to some partners Lesser tax liability than corporations

2 Freedom to sort out their management and business affairs directly Simple and quick process of registration Perpetual existence, irrespective of changes in partners A minimum of two partners are required for its formation No restriction to the maximum number of partners No minimum capital contribution recommendations Less Government intervention. Body corporate can be a partner of an LLP. No exposure to personal assets of the partners except in a fraud case. The Ministry does not allow another person to start another LLP or Company in your LLP's Name. No requirement of audit of accounts until turnover reaches Rs.40 lakhs or Contribution of Rs.25 lakhs. Easy to dissolve or wind-up. FORMATION OF LIMITED LIABILITY PARNERSHIP DESIGNATED PARTNER Every LLP shall be required to have at least two individual Designated Partners. At least one of the Designated Partners shall be a resident of India. In case of an LLP where all the partners are corporate bodies or in which one or more partners are individuals and corporate bodies, then at least two individuals who are partners of such LLP or nominees of such corporate bodies shall act as designated partners. STEPS TO REGISTER LLP

3

4 Apply DIN (Designated partner/director Identification Number) for every proposed Designated Partners (Minimum -2). Apply for Digital Signatures. Minimum capital shall be Rs 10,000. Finalize the business name and registered office address. File the form for approval of name and get the same approved. The LLP registration documents will be filed after the approval of the name. On scrutiny of the documents filed, the Registrar of LLP will register the LLP, and the certificate of Registration will be issued. Within 30 days from the date of Incorporation of LLP, partners of the LLP have to execute the LLP agreement and the same has to be filed with the Registrar of LLP in Form 3. The consent to act as Designated Partner/Partner has to be filed in Form 4. Apply for PAN and TAN. Open a Bank Account. Get other required registrations and licenses needed for your kind of business. DOCUMENTS REQUIRED FOR REGISTRATION ID proof of the proposed Partners: PAN Card, Passport, Election Id, Driving License - anyone (Income-tax PAN is a mandatory requirement as proof of identity for Indian Designated Partners and passport is a mandatory requirement as proof of identity for foreign nationals/partners.) Address proof of the proposed Partners: Passport, election (voter identity) card, ration card, driving license, electricity bill, telephone bill or bank account statement anyone. Passport size photographs of the Designated Partners.

5 Proof of Registered office address. STEPS INVOLVED IN LLP REGISTRATION STEP 1 : Apply DIN STEP 2 : Apply for Digital Signatures. STEP 3 : File the form for approval of name and get the same approved. STEP 4 : LLP Registration Documents filled with Registrar. STEP 5 : Obtaining Certificate from Registrar. STEP 6 : Making LLP Agreements. STEP 7 : Filling Form No. 3. STEP 8 : Get other required registrations and licenses needed for different kind of business. FDI IN LLP India's foreign trade policy has been formulated with a view to invite and encourages Foreign Direct Investment in India (FDI). There is considerable relaxation in approvals and regulations. The administrative and compliance aspects of FDI are prescribed by the Reserve Bank of India. The Government of India s recent decision to permit FDI in LLP is subject to the following conditions: FDI in LLPs will be allowed, through the Government approval route, only for LLPs operating in sectors/activities where 100 per cent FDI is allowed, through the automatic route. There are no FDI-linked performance related conditions (such as Non Banking Finance Companies or Development of Townships, Housing, Built-up infrastructure and Construction-development projects etc.) LLPs with FDI will not be allowed to operate in agricultural/plantation activity, print media or real estate

6 business. An Indian company, having FDI, will be permitted to make downstream investment in an LLP only if both-the company, as well as the LLP- are operating in sectors where 100 per cent FDI is allowed, through the automatic route and there are no FDI-linked performance related conditions. LLPs with FDI will not be eligible to make any downstream investments. Foreign Capital participation in the capital structure of LLPs will be allowed only by way of cash consideration, 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. Investment in LLPs by Foreign Institutional Investors (FIIs) and Foreign Venture Capital Investors (FVCIs) will not be permitted. LLPs will also not be permitted to avail External Commercial Borrowings (ECBs). In case the LLP with FDI has a body corporate that is a designated partner or nominates an individual to act as a designated partner in accordance with the provisions of section 7 of the LLP Act, 2008, such a body corporate should only be a company registered in India under the Companies Act, 1956 and not any other body, such as an LLP or a trust. For such LLPs, the designated partner "resident in India", as defined under the Explanation to section 7(1) of the LLP Act, 2008, would also have to satisfy the definition of "person resident in India", as prescribed under section 2(v)(i) of the Foreign Exchange Management Act, 1999.

7 The designated partners will be responsible for compliance with all the above conditions and also liable for all penalties imposed on the LLP for their contravention, if any. Conversion of a company with FDI, into an LLP, will be allowed only if the above stipulations are met and with the prior approval of FIPB/Government. DIFFERENCE BETWEEN LLP, COMPANY AND PARTNERSHIP FEATURES COMPANY PARTNERSHIP FIRM LLP REGISTRATION NAME CAPITAL CONTRIBUTION LEGAL ENTITY STATUS Compulsory registration required with the ROC. Certificate of Incorporation is conclusive evidence. Name of a public company to end with the word limited and a private company with the words private limited Private company should have a minimum paid up capital of Rs. 1 lakh and Rs.5 lakhs for a public company Not compulsory. Unregistered Partnership Firm will not have the ability to sue. No guidelines. Not specified Compulsory required with the ROC registration Name to end with LLP Limited Liability Partnership Not specified Is a separate legal entity Not a separate legal entity Is a separate legal entity Limited to the extent of unpaid Unlimited, can extend to the Limited to the extent of the

8 LIABILITY NO. OF SHAREHOLDER S / PARTNERS FOREIGN NATIONALS AS SHAREHOLDER / PARTNER TAXABILITY MEETINGS ANNUAL RETURN AUDIT HOW DO THE BANKERS VIEW DISSOLUTION capital. personal assets of the partners contribution to the LLP. Minimum of 2. In a private 2-20 partners Minimum of 2. No maximum. company, maximum of 50 shareholders Foreign nationals can be Foreign nationals cannot form Foreign nationals can be shareholders. partnership firm. partners. The income is taxed at 30% + The income is taxed at 30% + Not yet notified. surcharge+cess surcharge+cess Quarterly Board of Directors Not required Not required meeting, annual shareholding meeting is mandatory Annual Accounts and Annual No returns to be filed with the Annual statement of accounts Return to be filed with ROC Registrar of Firms and solvency & Annual Return has to be filed with ROC Compulsory, irrespective of share Compulsory Required, if the contribution is capital and turnover above Rs.25 lakhs or if annual turnover is above Rs. 40 lakhs. High creditworthiness, due to Creditworthiness depends on Perception is higher compared stringent compliances and goodwill and credit worthiness to that of a partnership but disclosures required of the partners lesser than a company. Very procedural. Voluntary or by By agreement of the partners, Less procedural compared to Order of National Company Law insolvency or by Court Order company. Voluntary or by

9 WHISTLE BLOWING Tribunal Order of National Company Law Tribunal No such provision No such provision Protection provided to employees and partners who provide useful information during the investigation process. WINDING UP & DISSOLUTIONS The winding up of the LLP may be either voluntary or by the Tribunal to be established under the Companies Act, Till the Tribunal is established, the power in this regard has been given to the High Court. VOLUNTARY WINDING UP Under this, the partners may between themselves decide to stop and wound up the operations of the LLP. COMPULSORY WINDING UP A limited liability partnership may be compulsorily wound up by the Tribunal, If the limited liability partnership decides that limited liability partnership be wound up by the Tribunal; If, for a period of more than six months, the number of partners of the limited liability partnership is reduced below two; If the limited liability partnership is unable to pay its debts;

10 If the limited liability partnership has acted against the interests of the sovereignty and integrity of India, the security of the State or public order; If the limited liability partnership has made a default in filing with the Registrar the Statement of Account and Solvency or annual return for any five consecutive financial years; or If the Tribunal is of the opinion that it is just and equitable that the limited liability partnership be wound up.