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What is a Limited Liability Company?

Limited Liability Partnership (LLP)  
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Limited Liability Partnership (LLP) is a new corporate structure that combines the flexibility of a partnership and the advantages of limited liability of a company at a low compliance cost. In other words, it is an alternative corporate business vehicle that provides the benefits of limited liability of a company, but allows its members the flexibility of organising their internal management on the basis of a mutually arrived agreement, as is the case in a partnership firm.

Owing to flexibility in its structure and operation, it would be useful for small and medium enterprises, in general, and for the enterprises in services sector, in particular. Internationally, LLPs are the preferred vehicle of business, particularly for service industry or for activities involving professionals.

LLP is governed by the provisions of the Limited Liability Partnership Act 2008, the salient features of which are as follows: -

  • The LLP shall be a body corporate and a legal entity separate from its partners. Any two or more persons, associated for carrying on a lawful business with a view to profit, may by subscribing their names to an incorporation document and filing the same with the Registrar, form a Limited Liability Partnership. 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 act provides flexibility to devise the agreement as per their choice.
     
  • 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. No partner would be liable on account of the independent or un-authorized actions of other partners or their misconduct. The liabilities of the LLP and partners who are found to have acted with intent to defraud creditors or for any fraudulent purpose shall be unlimited for all or any of the debts or other liabilities of the LLP.
     
  • Every LLP shall have at least two partners and shall also have at least two individuals as Designated Partners, of whom at least one shall be resident in India. The duties and obligations of Designated Partners shall be as provided in the law.
     
  • The LLP shall be under an obligation to maintain annual accounts reflecting true and fair view of its state of affairs. A statement of accounts and solvency shall be filed by every LLP with the Registrar every year. The accounts of LLPs shall also be audited, subject to any class of LLPs being exempted from this requirement by the Central Government.
     
  • The Central Government has powers to investigate the affairs of an LLP, if required, by appointment of competent Inspector for the purpose.
     
  • The compromise or arrangement including merger and amalgamation of LLPs shall be in accordance with the provisions of the LLP Act 2008.
     
  • A firm, private company or an unlisted public company is allowed to be converted into LLP in accordance with the provisions of the Act. Upon such conversion, on and from the date of certificate of registration issued by the Registrar in this regard, the effects of the conversion shall be such as are specified in the LLP Act. 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 without further assurance, act or deed and the firm or the company, shall be deemed to be dissolved and removed from the records of the Registrar of Firms or Registrar of Companies, as the case may be.
     
  • The winding up of the LLP may be either voluntary or by the Tribunal to be established under the Companies Act, 1956. Till the Tribunal is established, the power in this regard has been given to the High Court.
     
  • The LLP Act 2008 confers powers on the Central Government to apply provisions of the Companies Act, 1956 as appropriate, by notification with such changes or modifications as deemed necessary. However, such notifications shall be laid in draft before each House of Parliament for a total period of 30 days and shall be subject to any modification as may be approved by both Houses.
     
  • The Indian Partnership Act, 1932 shall not be applicable to Limited Liability Partnerships
  • LLP
    • LLP will be Body Corporate
    • LLP will be Legal Entity separate from its partners & shall have Perpetual Succession
    • Indian Partnership Act, 1932 shall not apply to LLP.
    • LLP can only carry business with profit motive
    • Multi Disciplinary Professional LLP can be formed
    • Any individual or body corporate can be a partner.
    • Minimum – 2 Partners.
    • Minimum 2 Designated Partners – individuals - one of them shall be Resident in India.
    • Every Designated Partners must obtain DIN from the Central Government. Designated Partner need not to apply for the DPIN separately.
    Partners
    • Subscribers to Incorporation Document will be the Partners of LLP and new partners shall be admitted as per the Provisions of LLP agreement.
    • The mutual rights and duties of the partners of LLP and the mutual rights and duties of LLP and its partners shall be governed by LLP agreement between the partners or between LLP and its partners.
    • In the absence of such agreement relationship of Partners and LLP would be governed as per Schedule 1 of LLP Act, 2008.
    Extent & Limitation of LLP & Partners
    • Partner is the agent of the LLP and not of the partners
    • LLP is not bound by the acts of partners if the partner has no authority to act for LLP.
    • LLP is liable if a partner is liable to any person as a result of wrongful act or omission on his part in the course of the business of LLP or with its authority.
    • Obligations of LLP shall be solely obligation of LLP and not the partners.
    • Partner is not personally liable, directly or indirectly for an obligation of the limited liability partnership whether arising in contract or otherwise.
    • Unlimited liability of LLP and Partners in case of fraud.
    Contributions
    • Contributions by Partners may be tangible, intangible, movable or immovable.
    Financial Disclosures
    • Books of Accounts to be maintained at the registered office for such period as may be prescribed.
    • Statement of accounts and Solvency (SAS) to be prepared – within 6 months from each Financial Year.
    • Accounts of LLP must be audited in case contribution/turnover exceeds 25 Lakh/40 Lakh
    • Annual Return – must be filed with ROC within 60 days of closure of its FY
    Assignment & Transfer of Partnership Rights
    • Rights of a partner to share profits and losses of LLP & to receive distributions are transferable either wholly or in part.
    • Transfer of right does not cause disassociation of the partner or dissolution and winding up of LLP
    • Transfer of right does not entitle the transferee or assignee to participate in the management or conduct of activities of LLP or access information concerning the transactions of LLP.
    Conversion to LLP
    • Firm / Private Company / unlisted public Company may be converted into LLP in accordance with this chapter & Schedule II/ III / IV respectively.
    Foreign LLP
    The Central Government may make rules for
    • establishment of place of business by foreign LLP within India and
    • Carrying on business by foreign LLP by applying the provisions of Companies Act or such regulatory mechanism as may be prescribed with such modifications, as appear appropriate.
    Compromises, Arrangement or Reconstruction of LLP
    • A compromise or arrangement can be between LLP and its Creditors or partners.
    • Application is made to Tribunal by LLP, creditor or partner. In case of wound up LLP application can be made by the liquidator. Tribunal order a meeting of creditors or partners..
    Winding up & Dissolution
    • Winding up of LLP may be either voluntary or by the Tribunal. LLP so wound up may de dissolved.
    • Section 64 provides Circumstances in which LLP may be wound up by the Tribunal.
    Miscellaneous
    • Partner may lend money to and transact other business with LLP.
    • Applicability of Companies Act, 1956 will be directed by CG by notification in Official Gazette.
    • Late filing of documents with ROC – can be filed up to 300 days from the date within which it should be filed + payment of fees of Rs. 100 for every day of such delay + original filing fees.
    • Provisions for dissolving LLP by declaring it defunct.
    • Concept of whistle Blower has been introduced.
    • Foreign Companies & LLP can reserve their exisiting name in India for 3 years