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LIMITED LIABILTY

PARTNERSHIP (LLP)

ANUBHAV BANSAL (C.A.),


SHREYANSH SHAH &
CA PURVI TRIVEDI
IN KIND GUIDANCE OF
C.A. CHANDRAKANT K. THAKKAR SIR

SHAH THAKKAR & CO., 1


CHARTERED ACCOUNTANTS
WHAT IS LLP ?
• Limited Liability partnership is a body corporate having
its identity different from the partners but the partners
have the choice of making an agreement to decide their
relationship with each other and with the firm. It is a
partnership having benefit of body corporate i.e. having
limited liability plus has the flexibility of having
partnership agreement to decide the between the
partners.

• The concept is already working in other countries though


in some of the countries it is allowed for professionals
only.

SHAH THAKKAR & CO.,


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CHARTERED ACCOUNTANTS
HYBRID OF COMPANY AND
PARTNERSHIP FIRM ?
• It is a combination of the Company and firm because it
has separate entity, perpetual succession and further the
partners liability is Limited but it has less formalities
regarding procedures in comparison of Companies.
Further the mutual rights, obligation and responsibility of
partners can be decided by agreement of LLP So you can
say it is a hybrid of Company and traditional
Partnership. So it has finer points of both traditional
partnership and company.

SHAH THAKKAR & CO.,


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CHARTERED ACCOUNTANTS
LLP IN INDIA
• In India, a concept paper on Limited Liability
Partnership Law was brought out by the Ministry of
Company Affairs in 2005. In the year 2006 the Limited
Liability Partnership Bill was introduced in the
Parliament and then it was referred to the parliamentary
committee for examination and report. After considering
the suggestions made by the committee a fresh bill in this
respect has been moved in the Rajya Sabha on 21-10-2008
and later in Lok Sabha and passed in both the Houses of
Parliament . It has got the assent of Hon. President on 7th
Jan 2009 and now it has become Limited Liability
Partnership Act- 2008.

SHAH THAKKAR & CO.,


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CHARTERED ACCOUNTANTS
PROLUSION
• “Limited Liability Partnership Act” came in presence
vide Notification No. S.O.891(E) dated 31st March, 2009.
In all 81 sections have been incorporated in the act under
XIV Chapters, followed by IV Schedules.
• Further, in exercise of the powers conferred by Sec.79(1)
and Sec.79(2) of the LLP Act the Central Government
made “The Limited Liability Partnership Rules, 2009”
vide Notification No. GSR 229(E), dated 01.04.2009. The
Rules contain XVII chapters, followed by Annexure A to
Annexure D.
• In total 31 forms are prescribed for the purposes of these
rules

SHAH THAKKAR & CO.,


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CHARTERED ACCOUNTANTS
CHAPTER I : PRELIMINARY
• Section 1 : Short title, extent and
commencement.
• Section 2 : Definitions.

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CHARTERED ACCOUNTANTS
CHAPTER II : NATURE OF LLP
• Section 3 : LLP to be body corporate.
• Section 4 : Non – applicability of the Indian
Partnership Act, 1932.
• Section 5 : Partners.
• Section 6 : Minimum number of partners.
• Section 7 : Designated Partners.
• Section 8 : Liabilities of Designated Partners.
• Section 9 : Changes in Designated Partners.
• Section 10 : Punishment for contravention of Sections 7,
8 and 9.

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CHARTERED ACCOUNTANTS
Section 3 : LLP to be body corporate.
• LLP is a body corporate and separate legal entity from its
partners.
• Shall have perpetual succession.
• Change in partners shall not affect the existence, rights or
liabilities of LLP.

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CHARTERED ACCOUNTANTS
Section 4 : Non – applicability of the
Indian Partnership Act, 1932.
• Provisions of the Indian Partnership Act, 1932 shall not
apply to a limited liability partnership.

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CHARTERED ACCOUNTANTS
Section 5 : Partners
• Any individual or body corporate.
• Proviso : Under following conditions individual shall not
be capable of becoming partner, if-
– found to be of unsound mind by a Court of competent
jurisdiction and the finding is in force;
– undischarged insolvent; or
– adjudicated as an insolvent and his application is
pending.

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CHARTERED ACCOUNTANTS
Section 6 : Minimum number of
partners.
• At least 2 partners.
• If at any time the minimum number of partners required
by the statutes is not met and the single partner, knowing
the fact, continues the business then he shall be personally
liable for all the obligations of the LLP incurred after 6
months from the date of default. For the obligations of the
1st 6 months liability will be limited as per agreement of
the LLP.

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CHARTERED ACCOUNTANTS
Section 7 : Designated Partners
• Designated partners is defined as partners designated
pursuant to section 7.
• LLP shall have atleast 2 designated partners who are
individual and atleast 1 should be resident in India.
• Prior consent in Form 9 to LLP, before becoming
designated partner.
• Every LLP is required to file above consent of each
individual with the Registrar with in 30 days of his
appointment, in Form 4 along with fees prescribed in
Annexure A.
• Every Designated Partner shall obtain Designated
Partner’s Identification Number (DPIN) from C.G.

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CHARTERED ACCOUNTANTS
Procedure for application and
allotment of DPIN (Rule 10)
• Application in Form 7.
• Provisional DPIN allotted, which has a validity of 60 days.
• Once the provisional DPIN is allotted print out of Form 7
is to be submitted to C.G. along with the fees and other
formalities mentioned in Annexure A.
• C.G. on the basis of this application with allot the DPIN
which shall be unique and for lifetime.
• Every Designated Partner shall intimate the C.G. through
Form 10 in event of any change in particulars of Form 7.

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CHARTERED ACCOUNTANTS
Section 8 : Liabilities of designated
partners.
• Responsible for completing various requirements under
this act and others mentioned in LLP agreement, if any.
• Liable for all penalties imposed on the LLP for any
contravention of the provisions mentioned above.

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CHARTERED ACCOUNTANTS
Section 9 : Changes in designated
partners
• LLP may appoint a designated partner within 30 days of
vacancy arising for any reasons and provisions of Section
7 shall apply.
• If no designated partner is appointed, or at any time there
is one designated partner, then each partner shall be
deemed to be a designated partner.

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CHARTERED ACCOUNTANTS
Section 10 : Punishment for
contravention of sections 7, 8 and 9.
• On non appointment of any designated partner-
– The LLP and its every partner shall be punishable
with a fine which shall be not less than Rs.10,000, but
may extend upto Rs.5,00,000.
• On non filing of consent of every partner to act as
designated partner by LLP to Registrar, Failure of
Designated Partner to satisfy the conditions &
requirements and contravention of provisions of Section 8
and 9 will lead to-
– The LLP and its every partner shall be punishable
with a fine which shall be not less than Rs.10,000, but
may extend upto Rs.1,00,000.

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CHARTERED ACCOUNTANTS
CHAPTER III : INCORPORATION
OF LLP AND MATTERS
INCIDENTAL THERETO
• Section 11 : Incorporation document.
• Section 12 : Incorporation by registration.
• Section 13 : Registered office of LLP and change
therein.
• Section 14 : Effect of registration.
• Section 15 : Name.
• Section 16 : Reservation of name.
• Section 17 : Change of name of LLP.
• Section 18 : Application for direction to change name in
certain cases.
• Section 19 : Change of registered name.

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CHARTERED ACCOUNTANTS
CHAPTER III : INCORPORATION
OF LLP AND MATTERS
INCIDENTAL THERETO
• Section 20 : Penalty for improper use of words “Limited
Liability Partnership” or “LLP”
• Section 21 : Publication of name and limited liability.

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CHARTERED ACCOUNTANTS
Section 11 : Incorporation document.
• Two or more persons associated for carrying on a lawful
business shall subscribe their name to an incorporation
document, which is to be filled with Registrar having
jurisdiction over the state in Form 2 along with fees as per
Annexure A.
• Statement in Part B of Form 2 is to be filed along with
incorporation document, signed by CA/CS/ICWA/Lawyer
engaged in formation of LLP and by any one who
subscribed his name to the incorporation document,
stating compliance of all the statutory requirements in
respect of incorporation and matters precedent and
incidental thereto.

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CHARTERED ACCOUNTANTS
Section 11 : Incorporation document.
• Incorporation document shall-
– be in form 2
– state the name of LLP.
– state the proposed business.
– state the address of the registered office.
– state the name and address of each persons who are to
be partners and designated partners of the LLP on
incorporation.
– contain such other information concerning the
proposed LLP as may be prescribed.

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CHARTERED ACCOUNTANTS
Section 11 : Incorporation document.
• If the person making statement in Part B of Form 2,
makes the statement which he-
– knows to be false; or
– does not believe to be true
shall be punishable with:-
– imprisonment for a term which may extend to two
years; and
– fine which shall be not less than Rs.10,000 but which
may extend to Rs.5,00,000.

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CHARTERED ACCOUNTANTS
Section 12 : Incorporation by
registration.
• Registrar shall, on compliance of Section 11, within a
period of 14 days-
– register the incorporation document; and
– give a certificate that the LLP is incorporated by the
name specified therein.
• Certificate of incorporation is to be signed by Registrar
and it is to be authenticated by his official seal;
• Certificate shall be conclusive evidence that the LLP is
incorporated by the name specified therein.

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CHARTERED ACCOUNTANTS
Section 13 : Registered office of
LLP and change therein.
• Every LLP shall have a registered office to which all
communication and notices may be addressed and where
they shall be received.
• A document may be served on LLP or a partner or
designated partner thereof by sending it by post under a
certificate of posting or by registered post or by any other
manner (email, fax, courier etc.) either at registered office
or any other address specifically declared by the LLP.

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CHARTERED ACCOUNTANTS
Section 13 : Registered office of
LLP and change therein.
• LLP may declare in addition to the registered address,
any other address for service of documents, in the manner
laid down in the LLP agreement and if nothing is
mentioned in agreement then with consent of all the
partners for declaring any other address as the address
for service of documents.
• The above intimation is required to be given in Form 12
within 30 days of complying with the aforesaid
requirements along with the fees prescribed in the
Annexure A.

SHAH THAKKAR & CO.,


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CHARTERED ACCOUNTANTS
Section 13 : Registered office of
LLP and change therein.
• In the similar manner discussed above LLP can change it
registered office by filing Form 15 with the registrar and
complying with other formalities.
• On contravention of this section LLP and its every
partner shall be punishable with fine which shall be not
less than Rs.2,000 but which may extend upto Rs.25,000.

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CHARTERED ACCOUNTANTS
Section 14 : Effect of registration.
• On registration, LLP, by its name, be capable of –
– suing and being sued ;
– acquiring, owning, holding and developing or disposing of
property, whether movable or immovable, tangible or
intangible;
– having a common seal, if it decides one; and
– doing and suffering such other acts and things as bodies
corporate may lawfully do and suffer.

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CHARTERED ACCOUNTANTS
Section 15 : Name.
• Every LLP shall have either the words “Limited Liability
Partnership” or the acronym “LLP” as the last words of
its name.
• No LLP shall be registered by a name which, in the
opinion of the C.G. is-
– undesirable; or
– identical or too merely resembles to that of any other
partnership firm or LLP or body corporate or a
registered trade mark.

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CHARTERED ACCOUNTANTS
Section 16 : Reservation of name.
• A person may apply to the Registrar having jurisdiction
where the registered office of the LLP is to be situated in
Form 1 along with the fees prescribed in Annexure A for
reservation of name set out in application as-
– the name of a proposed LLP; or
– the name to which a LLP proposes to change its name.
• Registrar on receipt of application and subject to the
provisions of section 15 and rule 18, shall reserve the
name for a period of three months from the date of
intimation by the Registrar.

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CHARTERED ACCOUNTANTS
Section 16 : Reservation of name.
• If name is not reserved by the registrar then such name
has a validity of 7 days only from the date of receipt of
application.
• In case of a foreign LLP or a foreign company application
is to be in Form 25 along with the fees mentioned in
Annexure A for reserving its existing name by which it is
registered in the country of its regulation or
incorporation:
Provided that such reservation shall be valid for three
years but may be renewed on a fresh application.

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CHARTERED ACCOUNTANTS
Section 17 : Change of name of LLP.
• Notwithstanding anything stated in sections 15 and 16,
Central Government may direct any LLP (whose name
resembles to other LLP or body corporate or other name
as to be likely to be mistaken for it) to change its name,
and the LLP shall comply with the said direction within 3
months after the date of the direction or such longer
period as the Central Government may allow.
• On contravention of above provision LLP shall be
punished with a fine not less than Rs.10,000 but which
may extend to Rs.5,00,000 AND the designated partners
shall be fined for atleast Rs.10,000 but maximum to
Rs.1,00,000.

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CHARTERED ACCOUNTANTS
Section 18 : Application for direction

to change name in certain circumstances.


• Any entity which already has a name similar to a name of
a LLP which has been incorporated subsequently, may
apply, in Form 23 to the Registrar to give a direction to
any LLP, on a ground referred to in section 17 to change
its name.
• Above application is to be made with in 24 months from
the date of registration of the LLP under that name.
• The application shall state-
– the LLPIN of LLP, or the CIN of the company or the
registration no. of the other entity as the case may be;
– the name with which the LLP or the Co. or any other
entity was incorporated;

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CHARTERED ACCOUNTANTS
Section 18 : Application for direction

to change name in certain circumstances.


– grounds of objection to the name of the LLP
incorporated subsequently.
• The person making the application shall attach-
– the authority under which he is making such an application;
– a copy of the incorporation certificate of the LLP or the Co.
or the registration certificate of the entity, as the case may
be.
• The above application shall be accompanied by a fee as
mentioned in Annexure A.

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CHARTERED ACCOUNTANTS
Section 19 : Change of registered
name.
• LLP may as per the provisions of the LLP agreement and
if nothing mentioned in LLP agreement then with the
consent of all the partners of the LLP change the name of
the LLP.
• Notice of change in name shall be given to the Registrar in
Form 5, within 30 days with requirement above along
with a fee as mentioned in Annexure A.
• Registrar on satisfaction must issue a fresh certificate of
incorporation in new name and the changed name shall
be effective from the date of such certificate.

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CHARTERED ACCOUNTANTS
Section 20 : Penalty for improper use of
words “Limited Liability Partnership” or
“LLP”.
• If any person uses the words “Limited Liability
Partnership” or “LLP” unless duly incorporated as LLP,
be punishable with fine which shall not be less than
Rs.50,000 but which may extend to Rs.5,00,000.

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CHARTERED ACCOUNTANTS
Section 21 : Publication of name and
limited liability.
• Every LLP shall ensure that its invoices, official
correspondence and publications bear the following,
namely-
– the name, address of its registered office and
registration number of the LLP; and
– a statement that it is registered with limited liability.
• On contravention of above provision LLP shall be
punishable with fine which shall not be less than Rs.2,000
but which may extend to Rs.25,000.

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CHARTERED ACCOUNTANTS
Section 22: Eligibility to be partners
• the persons who subscribed their names to the
incorporation document
• any other person may become a partner in
accordance with the limited liability partnership
agreement.

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CHARTERED ACCOUNTANTS
Section23:Relationship of partners.

• Sub section (1), Save as otherwise provided by


this Act,
-the mutual rights and duties of the partners of
LLP, and partnership and its partners shall be
governed by the LLP agreement between the
partners, or between the limited liability partnership
and its partners
• Sub section(2), agreement and any changes filed
with the Registrar

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CHARTERED ACCOUNTANTS
Section23:Relationship of partners.

• Sub section(3),An agreement in writing made


before the incorporation of a LLP between
subscribers of incorporation document may
impose obligations on the LLP, provided such
agreement is ratified by all the partners after the
incorporation
• Sub section(4), In the absence of agreement the
mutual rights and duties of the partners and
partnership and its partners shall be determined as
per First Schedule for that matter

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CHARTERED ACCOUNTANTS
Section24:Cessation of partnership
interest.
• (1) A person may cease to be a partner in
accordance with an agreement or, in the absence
of agreement, by giving a notice in writing of not
less than thirty days
• (2)A person shall cease to be a partner
-on his death or dissolution LLP.
- if he is declared to be of unsound mind by a
competent court.
-if he has applied to be adjudged as an insolvent or
declared as an insolvent.

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CHARTERED ACCOUNTANTS
Section24:Cessation of partnership
interest
• (3),person ceased to be a partner, is to be
regarded as still being a partner unless—

-the person has noticed that the former partner has


ceased to be a partner OR
-notice that the ceased partner has been delivered to
the Registrar.

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CHARTERED ACCOUNTANTS
section 24(4)&(5)
• The cessation of a partner does not by itself
discharge the partner from any obligation to LLP or
to the other partners or to any other person which
he incurred while being a partner.
• unless otherwise provided in the limited liability
partnership agreement cease partner or a person
entitled to his share in consequence of the death or
insolvency of the former partner, shall be entitled
to receive from the limited liability partnership—

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CHARTERED ACCOUNTANTS
Section24(5)&(6)
- an amount equal to the capital contribution of
cease partner
- his right to share in the accumulated profits
after the deduction of accumulated losses
determined as at the date the former partner ceased
to be a partner.
• (6)above person shall not have any right to
interfere in the management of the LLP

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CHARTERED ACCOUNTANTS
Section25:Registration of changes in partners.

• (1), Every partner shall inform the LLP of any


change in his name or address within a period of
fifteen days of such change.
• (2), A LLP shall file notice with registra within
30 days from –
-where a person becomes or ceases to be a partner
-where there is any change in the name or address
of a partner

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CHARTERED ACCOUNTANTS
section25(3)
• A notice filed with the Registrar under sub-section (2)—
-shall be in such form and accompanied by such fees as may be
prescribed
-shall be in such form and accompanied by such fees as may be
prescribed and authenticated in a manner as may be
prescribed; and
-if it relates to an incoming partner, shall contain a statement
consents to becoming a partner, signed by him and
authenticated in the manner as may be prescribed.

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CHARTERED ACCOUNTANTS
Section25(4)&(5)
• If contravenes the provisions of sub-section
(2), the LLP and every designated partner of
the LLP shall be punishable with fine not be
less than two thousand rupees but which
may extend to twenty-five thousand rupees.
• (5) If any partner contravenes the provisions
of sub-section (1),shall be punishable with
fine not be less than two thousand rupees
but which may extend to twenty-five
thousand rupees.

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CHARTERED ACCOUNTANTS
Section25(6)
• Any person who ceases to be a partner may
himself file with the Registrar the notice
referred to in sub-section (3) if he has
reasonable cause to believe that the LLP may
not file the notice with the Registrar and in case
of any such notice filed by a partner, the
Registrar shall obtain a confirmation to this
effect from the LLP unless the LLP has also
filed such notice :
• Provided that where no confirmation is given by the LLP
within fifteen days, the Registrar shall register the notice.

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CHARTERED ACCOUNTANTS
CHAPTER V:EXTENT AND LIMITATION OF
LIABILITY OF LIMITED LIABILITY PARTNERSHIP
AND PARTNERS
• Section 26: Partner as agent.
Every partner, for the purpose of the business of
the LLP, the agent of the LLP, but not of other
partners.

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CHARTERED ACCOUNTANTS
Section27:Extent of liability of LLP.

• (1) A LLP is not bound by anything done by a


partner in dealing with a person if
- the partner in fact has no authority to act for
LLP
-the person knows that he has no authority or does
not know or believe him to be a partner of the LLP
• (2) The LLP is liable if a partner, is liable to any
person as a result of a wrongful act or omission on
his part in the course of the business of the LLP or
with its authority.

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CHARTERED ACCOUNTANTS
secton27(3)&(4)
• (3), An obligation of the LLP whether arising in
contract or otherwise, shall be solely the
obligation of the LLP.
• (4) The liabilities shall be met out of the property

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CHARTERED ACCOUNTANTS
Section28:Extent of liability of
partner.
• (1) A partner is not personally liable, directly or
indirectly for an obligation referred to in sub-
section (3) of section 27 solely by reason of being a
partner
• (2) The provisions of sub-section (3) of section 27
and sub-section (1) of this section shall not affect
the personal liability of a partner for his own
wrongful act or omission, but a partner shall not be
personally liable for the wrongful act or omission
of any other partner

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CHARTERED ACCOUNTANTS
section29:Holding out.
• (1) Any person, who by words spoken or written or by
conduct, represents himself, or knowingly permits himself to
be represented to be a partner, is liable to any person who has
on the faith of any such representation given credit to the
LLP, whether the person representing himself or represented
to be a partner does or does not know that the representation
has reached the person so giving credit :
Provided that where any credit is received as a result of such
representation, without prejudice to the liability of the person
so representing himself or represented to be a partner, be
liable to the extent of credit received by it or any financial
benefit derived thereon.

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CHARTERED ACCOUNTANTS
Section29(2):Holding out.

• Sub section(2) Where after a partner’s death the


business is continued in the same name or of the
deceased partner’s name as a part thereof shall not
of itself make his legal representative or his estate
liable for any act of the LLP done after his death.

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CHARTERED ACCOUNTANTS
Section30(1):Unlimited liability in
case of fraud
• If LLP or its partner act with intent to defraud creditors or
any other person, or for any fraudulent purpose, shall be un-
limited for all or any of the debts or other liabilities of LLP

Provided that in case any such act the LLP is liable to the same
extent as the partner unless it is established by the LLP that
such act was without the knowledge or the authority of the
LLP.

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CHARTERED ACCOUNTANTS
section30(2)
• (2) Where any business is carried on with such
intent or for such purpose as mentioned in sub-
section (1), every person who was knowingly a
party to the carrying on of the business shall be
punishable with imprisonment for a term which
may extend to two years and with fine which shall
not be less than fifty thousand rupees but which
may extend to five lakh rupees.

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CHARTERED ACCOUNTANTS
section30(3)
• (3) Where a LLP or any partner or designated partner or
employee has conducted the affairs of the LLP in a
fraudulent manner, then without prejudice to any criminal
proceedings which may arise under any law for the time
being in force, the LLP and any such partner or designated
partner or employee shall be liable to pay compensation to
any person who has suffered any loss or damage by reason of
such conduct :

• Provided LLP shall not liable for act of such person if


they acted fraudulently without knowledge of the LLP.

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CHARTERED ACCOUNTANTS
section31:Whistle blowing.

• (1) The Court or Tribunal may reduce or waive any penalty if


it is satisfied that, or
-they provided useful information during investigation
-any information given by any partner or employee (whether or
not during investigation) leads to LLP or any partner or
employee of such LLP being convicted under this Act or any
other Act
• (2) No partner or employee of any LLP may be discharged,
demoted, suspended, threatened, harassed or in any other
manner discriminated against the terms and conditions of his
LLP or employment merely because of his providing
information or causing information to be provided pursuant
to sub-section (1).

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CHARTERED ACCOUNTANTS
CHAPTER VI:CONTRIBUTIONS

• Section32:Form
Section32: of contribution.
(1) A contribution of a partner may consist of tangible,
movable or immovable or intangible property or other benefit
to the LLP, including money, promissory notes, other
agreements to contribute cash or property, and contracts for
services performed or to be performed.

• (2) The monetary value of contribution of each partner shall


be accounted for and disclosed in the accounts in the manner
as may be prescribed.

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CHARTERED ACCOUNTANTS
Section33:Obligation to contribute.

• (1) The obligation of a partner to contribute


money or other property or other benefit or to
perform services for LLP shall be as per
agreement.
• (2) A creditor of LLP, which extends credit or
otherwise acts in reliance on an obligation
described in that agreement, any compromise
between partners, in agreement may enforce the
original obligation against such partner.

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CHARTERED ACCOUNTANTS
CHAPTER VII:FINANCIAL
DISCLOSURES
• Section34:Maintenance of books of account, other
records and audit for LLP, etc.
-(1)shall maintain such books of account as may be
prescribe for the each year on cash or accrual basis
and according to double entry system at registered
office for such period as may be prescribe.
-(2) shall prepare a statement of Account and
Solvency for the said financial year within a period
of six months from the end of each financial year, in
such form as may be prescribed and shall be signed by
the designated partners

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CHARTERED ACCOUNTANTS
Section34(3)&(4)

• (3) such form as prescribe in sub section(2) shall


be filed with registrar every year in such form
and manner and accompanied by such fees as
may be prescribed.
• (4) The accounts shall be audited in accordance
with such rules as may be prescribed
PROVIDED that the Central Government may give
exemption , by notification in the Official Gazette

SHAH THAKKAR & CO.,


60
CHARTERED ACCOUNTANTS
Section34(5)
• If any LLP fails to comply with this provision of
this section shall be punishable with fine which
may be between 25,000 to 5,00,000 and
every designated partner shall be punishable
with fine which may be between 10,000 to
1,00,000

SHAH THAKKAR & CO.,


61
CHARTERED ACCOUNTANTS
section35:Annual return.
• (1)annual return duly authenticated with the
Registrar within sixty days of closure of its
financial year in such form and manner and
accompanied by such fee as may be prescribed.
• (2)If any LLP fails to comply with this provision
of this section shall be punishable with fine
which may be between 25,000 to 5,00,000
• (3) every designated partner shall be punishable
with fine which may be between 10,000 to
1,00,000

SHAH THAKKAR & CO.,


62
CHARTERED ACCOUNTANTS
section36:Inspection of documents
kept by Registrar.

• Documents filed by LLP with registrar shall be


available for inspection by any person, on payment
of such fee as prescribe in “Annexure-A”

SHAH THAKKAR & CO.,


63
CHARTERED ACCOUNTANTS
Section37:Penalty for false statement.
• If any document required to filed; is filed which is
knowing to be
- false or omit in material particular
he shall, save otherwise expressly provided in this act, be
punishable with
- imprisonment for up to 2 years AND
- fine between 1,00,000 to 5,00,000

SHAH THAKKAR & CO.,


64
CHARTERED ACCOUNTANTS
Section38:Power of Registrar to
obtain information.
• (1), registrar may may require any person to
answer any question or make any declaration or
supply any details or particulars in writing within
reasonable time
• (2), if such person not provide information within
time or if registrar not satisfied with information,
he can issue summons to appear before him or any
public officer
• (3)if any person, without lawful reason fails to
comply with summons, shall be punishable with
fine between 2,000 to 25,000

SHAH THAKKAR & CO.,


65
CHARTERED ACCOUNTANTS
Section39: compounding of offence

• The central government may compounding any offence


punishable with fine only,

SHAH THAKKAR & CO.,


66
CHARTERED ACCOUNTANTS
section40:Destruction of old
records
• Registrar may destroy any document filed or registered
with physically or electronic form with him may destroy
accordance with as prescribe in rules

SHAH THAKKAR & CO.,


67
CHARTERED ACCOUNTANTS
Chapter VIII: Assignment and
Transfer of Partnership Rights
Section 42 : Partner’s Transferable Interest
• Rights of a partner to a share of the profits and
losses of LLP and to receive distributions in
accordance with the LLP agreement are transferable
either wholly or partly
• Such transfer of any right by any partner neither by
itself causes the disassociation of the partner or
dissolution of LLP nor does it entitle the transferee
to participate in the management of LLP or conduct
the activities of LLP or access information
concerning the transactions of LLP

SHAH THAKKAR & CO., 68


CHARTERED ACCOUNTANTS
Chapter IX: Investigation
Section 43: Investigation of the affairs of LLP
Section 44: Application by partners for investigation
Section 45: Firm, body corporate or association not to
be appointed as inspector
• The CG shall appoint one or more competent
persons (not being a firm, body corporate or other
association) as Inspectors to investigate the affairs of
LLP and to report thereon in such manner as it may
direct, if it is of the opinion that there are any
circumstances suggesting that:

SHAH THAKKAR & CO.,69


CHARTERED ACCOUNTANTS
• the business of LLP is being/has been conducted:
− with an intent to defraud its creditors, partners, any
other person, or
− with an unlawful/fraudulent purpose, or
− in a manner oppressive or unfairly prejudicial to some or
any of its partners, or
• the affairs of LLP are not being conducted in accordance
with the provisions of this Act, or
• on receipt of a report of the Registrar or any other
investigating/regulatory agency, there are sufficient
reasons that the affairs of LLP ought to be investigated

SHAH THAKKAR & CO.,70


CHARTERED ACCOUNTANTS
• The CG shall appoint Inspectors if:
− the Tribunal, either suo moto, or on an application
received from not less than 1/5th of the total no. of
partners of LLP, by order declares that the affairs of LLP
ought to be investigated, or
− any Court, by order, declares that the affairs of LLP
ought to be investigated
• Such investigation can also be made if the LLP as a whole
makes such an application
• Such application shall be supported by such evidence as
the Tribunal may require, stating that the applicants have
good reason for requiring the investigation and security
for the payment of costs of the investigation

SHAH THAKKAR & CO.,71


CHARTERED ACCOUNTANTS
• Rule 28 prescribes the following scale for the payment of
costs of investigation:

Turnover (Rs.) Amount of


Security (Rs.)
Upto 1 Crore 2 Lakh

1 Crore – 5 Crore 5 Lakh

5 Crore – 10 Crore 10 Lakh

10 Crore or more 25 Lakh

SHAH THAKKAR & CO.,72


CHARTERED ACCOUNTANTS
• Turnover for the above purpose would be as stated in the
Statement of Account of Solvency for the immediately
preceding financial year

• In the absence of Statement of Account and Solvency such


amount of security as may be fixed by the CG shall be
paid

SHAH THAKKAR & CO.,


73
CHARTERED ACCOUNTANTS
Section 46: Power of inspectors to carry out investigation
into affairs of related entities, etc.

• The inspector shall have the power to investigate also the


affairs of an entity which has been associated in the past
or is presently associated or any present or former
partner/designated partner of LLP, and shall report on its
affairs which are relevant to the investigation of the
affairs of LLP
• Such an investigation shall be made only after obtaining
the prior approval of the CG
• Proviso: Before granting such approval, the CG shall give
the entity or partner/designated partner a reasonable
opportunity to show cause why such approval should not
be accorded

SHAH THAKKAR & CO.,


74
CHARTERED ACCOUNTANTS
Section 47: Production of documents and evidence

• It shall be the duty of partner/designated partners of LLP


and any other entity which the inspector may require
with the prior approval of CG to preserve and produce all
books and papers of or relating to LLP or any other
entity which are in their custody/power, before an
inspector or any person authorized by him in this behalf
with the previous approval of CG
• The inspector may keep in his custody any books and
papers in his custody for not more than 30 days.
However, he may call for them again if needed. Besides, if
certified copies of books and papers are produced, he
shall return all books and papers

SHAH THAKKAR & CO.,75


CHARTERED ACCOUNTANTS
• An inspector may examine on oath (and administer the
same) any partners/designated partners of LLP or any
other entity (with prior approval of CG) and may require
them to appear before him personally
• The notes of such examination shall be taken down in
writing and signed by the person examined on oath, a
copy of which shall be furnished to him and used as
evidence by the inspector
• If any person fails without reasonable cause or refuses to
either produce any books or papers, or to furnish any
information, appear personally before the inspector or to
sign notes of examination, he shall be punishable with fine
of not less than Rs.2000 and upto Rs.25000 and a further
fine of Rs.50 to 500/day after the 1st day after which the
default continues

SHAH THAKKAR & CO.,76


CHARTERED ACCOUNTANTS
Section 48: Seizure of documents by inspector

• Every search or seizure made under this section shall be


carried out in accordance with the provisions of Code of
Criminal Procedure,1973(2 of 1974)
• If during the course of investigation, the inspector has
reasonable ground to believe that books or papers
relating to LLP/partner or designated partner thereof/any
other entity, may be destroyed, mutilated, altered,
falsified or secreted, the inspector may make an
application to the Judicial Magistrate of the 1st class, or
the Metropolitan Magistrate having jurisdiction, for an
order for seizure of such books and papers

SHAH THAKKAR & CO.,77


CHARTERED ACCOUNTANTS
• The Magistrate may by order (after considering the
application and hearing the inspector) authorize him to
enter, with assistance, the places where such books and
papers are kept, to search those places in the manner
stated in the order and to seize books and papers which
the inspector considers necessary for the purposes of his
investigation
• The inspector shall return such seized books and papers
to the concerned entity after placing identification marks
on the same and inform the Magistrate of such return
• Proviso: The inspector shall not keep such seized material
for a continuous period of 6 months and also not later
than the conclusion of investigation

SHAH THAKKAR & CO.,78


CHARTERED ACCOUNTANTS
Section 49: Inspector’s report

• On conclusion of the investigation, the inspectors shall


make a final report to the CG, which shall be either
written or printed, and the CG shall forward a copy of
the same to the LLP at its registered office and to any
other related entity
• The CG may also direct the inspectors to make interim
reports, which are not required to be forwarded
• Rule 30 prescribes that the CG may also furnish a copy of
the final report to any other person affected by the report
on payment of fees which shall be Rs.5 per page or any
part thereof

SHAH THAKKAR & CO.,79


CHARTERED ACCOUNTANTS
Section 50: Prosecution

• Any person/entity guilty of any offence for which he is


liable, and as apparent from the report is liable to be
prosecuted by the CG

• It shall be the duty of all partners/designated partners,


employees and agents of LLP to provide assistance to CG
in this regard

SHAH THAKKAR & CO.,80


CHARTERED ACCOUNTANTS
Section 51: Application for winding up of LLP

• If it appears to the CG from any of the reports that it is


expedient that the LLP should be wound up, it may file a
petition to the Tribunal for the winding up of LLP

SHAH THAKKAR & CO.,81


CHARTERED ACCOUNTANTS
Section 52: Proceedings for recovery of damages or property

• The CG may itself initiate proceedings against the LLP or


any entity whose affairs have been investigated, which it
thinks fit in the public interest to do for recovery of
damages in respect of any fraud, misfeasance, misconduct
in promotion/formation/management of affairs of LLP or
any other entity and recovery of any property misapplied
or wrongfully retained

SHAH THAKKAR & CO.,82


CHARTERED ACCOUNTANTS
Section 53: Expenses of investigation

• Any costs of expenses incidental to an investigation or any


proceedings thereafter shall be first borne by the CG and
thereafter shall be reimbursed by the persons convicted
on prosecution or liable to pay damages or restore any
property to the extent specified

• Such amount of expenses shall be recovered by the CG as


arrears of land revenue

SHAH THAKKAR & CO.,83


CHARTERED ACCOUNTANTS
Section 54: Inspector’s report to be evidence

• A copy of report of any inspector shall be authenticated


either by:
− affixing the common seal of LLP or
− a certificate of public officer having custody of report and
in accordance with the provisions of Section 76 of Indian
Evidence Act,1872 ( 1 of 1872),
and shall be admissible and used as evidence in any legal
proceedings in relation to any matter contained in the
report

SHAH THAKKAR & CO.,84


CHARTERED ACCOUNTANTS
Chapter X : Conversion to LLP

(Section 55 read with the Second Schedule-


Conversion from Firm to LLP)

• A firm may convert into a LLP in accordance


with the provisions of Chapter X and the Second
Schedule and upon such conversion, the
partners of the firm shall be bound by the
provisions of this Schedule that are applicable to
them.

SHAH THAKKAR & CO.,85


CHARTERED ACCOUNTANTS
Eligibility for Conversion:

A firm may apply for conversion “IF AND ONLY

IF” all the partners of the firm and NO ONE

ELSE become the partners of LLP.

SHAH THAKKAR & CO.,86


CHARTERED ACCOUNTANTS
Documents to be filed:

• An application shall be made to the Registrar in


the format provided in Part A of Form 17,

• A statement of all partners in the format


provided in Part B of Form 17, alongwith the
fees mentioned in Annexure ‘A’ as prescribed
by the CG,

SHAH THAKKAR & CO.,87


CHARTERED ACCOUNTANTS
• Incorporation document of LLP i.e. Form 2 stating
the name, proposed business, address of each of the
persons who are to be partners/designated partners
of LLP, and other such information as stated in
Section 11,

• A statement in prescribed form made either by an


advocate, or CS/CA/ICWA who is engaged in
formation of LLP and by any one who subscribed his
name to the incorporation document, stating that all
the requirements of this Act and rules made
thereunder have been complied with.

SHAH THAKKAR & CO.,88


CHARTERED ACCOUNTANTS
Registration and Effect of Conversion
(Section 58 read with Second Schedule)
Registration of Conversion
• The Registrar on satisfying that the firm has
complied with the provisions of Second
Schedule, register the documents and issue a
certificate of registration under his seal in Form
19.

SHAH THAKKAR & CO.,89


CHARTERED ACCOUNTANTS
• The Registrar may refuse to register any LLP if
he is not satisfied with the particulars or other
information furnished under the provisions of
this Act.

• However the applicant firm may apply to the


Tribunal within 60 days from the date of receipt
of such intimation of refusal.

SHAH THAKKAR & CO.,90


CHARTERED ACCOUNTANTS
Proviso to Section 58:

• The LLP shall within 15 days of the date of


registration inform the concerned ROF with
which it was registered under the Indian
Partnership Act, 1932 about the conversion and
about the particulars of the LLP in Form 14.

SHAH THAKKAR & CO.,91


CHARTERED ACCOUNTANTS
Effect of Registration

On and from the date of registration specified in


the certificate of registration:-

• The LLP shall be formed under the name


specified in the certificate of registration and the
firm shall be deemed to be dissolved and its
name shall be removed from the records of
ROF,

SHAH THAKKAR & CO.,92


CHARTERED ACCOUNTANTS
• All the tangible/intangible property vested in the
firm, either movable or immovable, all assets,
interests, rights, privileges, liabilities,
obligations relating to the firm and the whole of
the undertaking of the firm shall be transferred
to the LLP, without any further procedure,

• If any such property is registered with any


authority, the LLP shall notify such authority of
the conversion and of the particulars of LLP in
the mode as required by such authority.

SHAH THAKKAR & CO.,93


CHARTERED ACCOUNTANTS
• Any pending proceedings on the date of
registration, in any Court or Tribunal or before
any authority by or against the firm, may be
continued, completed and enforced by or against
the LLP.

• Likewise, any conviction, ruling, order or


judgment of any authority in favour of or
against the firm may be enforced by or against
the LLP.

SHAH THAKKAR & CO.,94


CHARTERED ACCOUNTANTS
• Every agreement to which the firm was a party
immediately before the date of registration shall
have effect as from the date of registration as if
the LLP were a party to such an agreement
instead of the firm.

• All deeds, contracts, schemes, bonds,


agreements, applications, instruments and
arrangements subsisting before the date of
registration relating to the firm shall continue to
be enforceable by or against the LLP.

SHAH THAKKAR & CO.,95


CHARTERED ACCOUNTANTS
• Every contract of employment in relation to
such agreements or contracts shall also continue
to be in force as if the LLP were the employer
thereunder instead of the firm.

• Any authority or power conferred on the firm


before the conversion shall operate as if it were
conferred on the LLP.

• Every appointment of the firm in any role or


capacity before registration of LLP shall take
effect and operate as if the LLP were appointed.

SHAH THAKKAR & CO.,96


CHARTERED ACCOUNTANTS
• The benefit of any approval, permit or license issued to
the firm shall also vest in the hands of LLP after
conversion.

• NOTWITHSTANDING anything stated above, every


partner of a firm that has been converted into a LLP shall
continue to be personally liable (jointly and severally with
the LLP) for the liabilities and obligations of the firm
incurred/arising prior to the conversion.

• If any partner discharges any such liability or obligation,


he shall be entitled to be fully indemnified by the LLP,
UNLESS the LLP agreement stipulates anything to the
contrary.

SHAH THAKKAR & CO.,97


CHARTERED ACCOUNTANTS
Notice of conversion in correspondence
• The LLP shall ensure that, within 14 days of
registration and upto a period of 12 months,
every official correspondence of the LLP bears:-
- a statement that it was from the date of
registration converted into a LLP, and
- the name and registration number of the firm
from which it was converted.
• In case of contravention of the above provision,
LLP shall be punishable with fine of Rs.10,000
to Rs.1,00,000 and with a further fine of Rs.50 to
Rs.500/day after the first day after which the
default continues.

SHAH THAKKAR & CO.,98


CHARTERED ACCOUNTANTS
(Section 56 read with the Third Schedule-
Conversion from Private Company into LLP)

• A private company may convert into a LLP in


accordance with the provisions of Chapter X
and the Third Schedule and upon such
conversion, the company, its shareholders, the
LLP and its partners shall be bound by the
provisions of this Schedule that are applicable to
them.

SHAH THAKKAR & CO.,99


CHARTERED ACCOUNTANTS
Eligibility for Conversion:
A private company may apply for conversion

“IF AND ONLY IF” all the shareholders of the

company and NO ONE ELSE become the

partners of LLP and there is no security

interest in its assets subsisting or in force at

the time of application.

SHAH THAKKAR & CO.,100


CHARTERED ACCOUNTANTS
Documents to be filed:

• An application shall be made to the Registrar in the


format provided in Part A of Form 18,

• A statement of all shareholders in the format


provided in Part B of Form 18, alongwith the fees
mentioned in Annexure ‘A’ as prescribed by the CG,

SHAH THAKKAR & CO.,101


CHARTERED ACCOUNTANTS
• Incorporation document of LLP i.e. Form 2 stating
the name, proposed business, address of each of the
persons who are to be partners/designated partners
of LLP, and other such information as stated in
Section 11,

• A statement in prescribed form made either by an


advocate, or CS/CA/ICWA who is engaged in
formation of LLP and by any one who subscribed his
name to the incorporation document, stating that all
the requirements of this Act and rules made
thereunder have been complied with.

SHAH THAKKAR & CO.,102


CHARTERED ACCOUNTANTS
Registration and Effect of Conversion
(Section 58 read with Third Schedule)
Registration of Conversion
• The Registrar on satisfying that the private
limited company has complied with the
provisions of Third Schedule, register the
documents and issue a certificate of registration
under his seal in Form 19.

SHAH THAKKAR & CO.,103


CHARTERED ACCOUNTANTS
• The Registrar may refuse to register any LLP if
he is not satisfied with the particulars or other
information furnished under the provisions of
this Act.

• However the applicant firm may apply to the


Tribunal within 60 days from the date of receipt
of such intimation of refusal.

SHAH THAKKAR & CO.,104


CHARTERED ACCOUNTANTS
Proviso to Section 58:

• The LLP shall within 15 days of the date of


registration inform the concerned ROC with
which it was registered under the Indian
Companies Act, 1956 about the conversion and
about the particulars of the LLP in Form 14.

SHAH THAKKAR & CO.,105


CHARTERED ACCOUNTANTS
Effect of Registration

On and from the date of registration specified in


the certificate of registration:-

• The LLP shall be formed under the name


specified in the certificate of registration and the
company shall be deemed to be dissolved and its
name shall be removed from the records of
ROC,

SHAH THAKKAR & CO.,106


CHARTERED ACCOUNTANTS
• All the tangible/intangible property vested in the
company, either movable or immovable, all
assets, interests, rights, privileges, liabilities,
obligations relating to the company and the
whole of the undertaking of the company shall
be transferred to the LLP, without any further
procedure,

• If any such property is registered with any


authority, the LLP shall notify such authority of
the conversion and of the particulars of LLP in
the mode as required by such authority.

SHAH THAKKAR & CO.,107


CHARTERED ACCOUNTANTS
• Any pending proceedings on the date of
registration, in any Court or Tribunal or before
any authority by or against the company, may
be continued, completed and enforced by or
against the LLP.

• Likewise, any conviction, ruling, order or


judgment of any authority in favour of or
against the company may be enforced by or
against the LLP.

SHAH THAKKAR & CO.,108


CHARTERED ACCOUNTANTS
• Every agreement to which the company was a
party immediately before the date of
registration shall have effect as from the date of
registration as if the LLP were a party to such
an agreement instead of the company.

• All deeds, contracts, schemes, bonds,


agreements, applications, instruments and
arrangements subsisting before the date of
registration relating to the company shall
continue to be enforceable by or against the
LLP.

SHAH THAKKAR & CO.,109


CHARTERED ACCOUNTANTS
• Every contract of employment in relation to
such agreements or contracts shall also continue
to be in force as if the LLP were the employer
thereunder instead of the company.

• Any authority or power conferred on the


company before the conversion shall operate as
if it were conferred on the LLP.

• Every appointment of the company in any role


or capacity before registration of LLP shall take
effect and operate as if the LLP were appointed.

SHAH THAKKAR & CO.,110


CHARTERED ACCOUNTANTS
• The benefit of any approval, permit or license
issued to the company shall also vest in the
hands of LLP after conversion.

SHAH THAKKAR & CO.,111


CHARTERED ACCOUNTANTS
Notice of conversion in correspondence
• The LLP shall ensure that, within 14 days of
registration and upto a period of 12 months,
every official correspondence of the LLP bears:-
- a statement that it was from the date of
registration converted into a LLP, and
- the name and registration number of the
company from which it was converted.
• In case of contravention of the above provision,
LLP shall be punishable with fine of Rs.10,000
to Rs.1,00,000 and with a further fine of Rs.50 to
Rs.500/day after the first day after which the
default continues.

SHAH THAKKAR & CO.,112


CHARTERED ACCOUNTANTS
(Section 57 read with the Fourth Schedule-
Conversion from Unlisted Public Company into
LLP)

• A company may convert into a LLP in


accordance with the provisions of Chapter X
and the Fourth Schedule and upon such
conversion, the company, its shareholders, the
LLP and its partners shall be bound by the
provisions of this Schedule that are applicable to
them.

SHAH THAKKAR & CO.,113


CHARTERED ACCOUNTANTS
Eligibility for Conversion:
A company may apply for conversion

“IF AND ONLY IF” all the shareholders of the

company and NO ONE ELSE become the

partners of LLP and there is no security

interest in its assets subsisting or in force at

the time of application.

SHAH THAKKAR & CO.,114


CHARTERED ACCOUNTANTS
Documents to be filed:

• An application shall be made to the Registrar in the


format provided in Part A of Form 18,

• A statement of all shareholders in the format


provided in Part B of Form 18, alongwith the fees
mentioned in Annexure ‘A’ as prescribed by the CG,

SHAH THAKKAR & CO.,115


CHARTERED ACCOUNTANTS
• Incorporation document of LLP i.e. Form 2 stating
the name, proposed business, address of each of the
persons who are to be partners/designated partners
of LLP, and other such information as stated in
Section 11,

• A statement in prescribed form made either by an


advocate, or CS/CA/ICWA who is engaged in
formation of LLP and by any one who subscribed his
name to the incorporation document, stating that all
the requirements of this Act and rules made
thereunder have been complied with.

SHAH THAKKAR & CO.,116


CHARTERED ACCOUNTANTS
Registration and Effect of Conversion
(Section 58 read with Fourth Schedule)
Registration of Conversion
• The Registrar on satisfying that the company
has complied with the provisions of Fourth
Schedule, register the documents and issue a
certificate of registration under his seal in Form
19.

SHAH THAKKAR & CO.,117


CHARTERED ACCOUNTANTS
• The Registrar may refuse to register any LLP if
he is not satisfied with the particulars or other
information furnished under the provisions of
this Act.

• However the applicant firm may apply to the


Tribunal within 60 days from the date of receipt
of such intimation of refusal.

SHAH THAKKAR & CO.,118


CHARTERED ACCOUNTANTS
Proviso to Section 58:

• The LLP shall within 15 days of the date of


registration inform the concerned ROC with
which it was registered under the Indian
Companies Act, 1956 about the conversion and
about the particulars of the LLP in Form 14.

SHAH THAKKAR & CO.,119


CHARTERED ACCOUNTANTS
Effect of Registration

On and from the date of registration specified in


the certificate of registration:-

• The LLP shall be formed under the name


specified in the certificate of registration and the
company shall be deemed to be dissolved and its
name shall be removed from the records of
ROC,

SHAH THAKKAR & CO.,120


CHARTERED ACCOUNTANTS
• All the tangible/intangible property vested in the
company, either movable or immovable, all
assets, interests, rights, privileges, liabilities,
obligations relating to the company and the
whole of the undertaking of the company shall
be transferred to the LLP, without any further
procedure,

• If any such property is registered with any


authority, the LLP shall notify such authority of
the conversion and of the particulars of LLP in
the mode as required by such authority.

SHAH THAKKAR & CO.,121


CHARTERED ACCOUNTANTS
• Any pending proceedings on the date of
registration, in any Court or Tribunal or before
any authority by or against the company, may
be continued, completed and enforced by or
against the LLP.

• Likewise, any conviction, ruling, order or


judgment of any authority in favour of or
against the company may be enforced by or
against the LLP.

SHAH THAKKAR & CO.,122


CHARTERED ACCOUNTANTS
• Every agreement to which the company was a
party immediately before the date of
registration shall have effect as from the date of
registration as if the LLP were a party to such
an agreement instead of the company.

• All deeds, contracts, schemes, bonds,


agreements, applications, instruments and
arrangements subsisting before the date of
registration relating to the company shall
continue to be enforceable by or against the
LLP.

SHAH THAKKAR & CO.,123


CHARTERED ACCOUNTANTS
• Every contract of employment in relation to
such agreements or contracts shall also continue
to be in force as if the LLP were the employer
thereunder instead of the company.

• Any authority or power conferred on the


company before the conversion shall operate as
if it were conferred on the LLP.

• Every appointment of the company in any role


or capacity before registration of LLP shall take
effect and operate as if the LLP were appointed.

SHAH THAKKAR & CO.,124


CHARTERED ACCOUNTANTS
• The benefit of any approval, permit or license
issued to the company shall also vest in the
hands of LLP after conversion.

SHAH THAKKAR & CO.,125


CHARTERED ACCOUNTANTS
Notice of conversion in correspondence
• The LLP shall ensure that, within 14 days of
registration and upto a period of 12 months,
every official correspondence of the LLP bears:-
- a statement that it was from the date of
registration converted into a LLP, and
- the name and registration number of the
company from which it was converted.
• In case of contravention of the above provision,
LLP shall be punishable with fine of Rs.10,000
to Rs.1,00,000 and with a further fine of Rs.50 to
Rs.500/day after the first day after which the
default continues.

SHAH THAKKAR & CO.,126


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”
• There would be no capital gains on transfer of
any capital asset or intangible asset by a private
company or unlisted public company as a result
of conversion of the company into a LLP, w.e.f.
1st April, 2011, by virtue of section 47(xiiib) of
the Income Tax Act,1961 if the following
conditions are fulfilled:-
 All the assets and liabilities of the company
immediately before conversion become the
assets and liabilities of the LLP,

SHAH THAKKAR & CO.,127


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”
 All the shareholders of the company become the
partners of the LLP with the capital
contribution and profit sharing ratio in the same
proportion as their shareholding in the company
on the date of conversion,
 The consideration to the shareholders is only by
way of share in profit and capital contribution,

SHAH THAKKAR & CO.,128


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”
 The aggregate of the profit sharing ratio of the
shareholders in the LLP shall not be less than
51% at any time for a period of 5 years,
 The total sales, turnover or gross receipts in
business of the company in any of the 3 previous
years preceeding the previous year of
conversion does not exceed Rs.60 lakhs,
 No amount is paid to any partner out of the
balance of accumulated profit standing in the
books of the company on the date of conversion
for a period of 3 years from the date of
conversion.

SHAH THAKKAR & CO.,129


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”

• W.e.f. 1st April, 2011, as per section 47A of the


I.T. Act,1961, where any of the above conditions
are not complied with, the amount of profits and
gains arising from the transfer of such capital
asset or intangible asset shall be deemed to be
the profits and gains chargeable to tax in the
hands of the successor LLP for the previous
year in which the requirements of section
47(xiiib) are not complied with.

SHAH THAKKAR & CO.,130


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”
• W.e.f. 1st April, 2011, as per the new clause (6A)
inserted in section 72A of the I.T. Act,1961, the
accumulated loss and unabsorbed depreciation
of the predecessor company shall be available to
the LLP on conversion.
• However, on non-compliance of any of the
conditions laid down in section 47(xiiib), the set-
off of loss or depreciation allowance made in
any previous year shall be deemed to be the
income of LLP for that year chargeable to tax.

SHAH THAKKAR & CO.,131


CHARTERED ACCOUNTANTS
“Budget 2010 Proposals”
• As per section 115JAA of the I.T. Act,1961
(w.e.f. 1st April,1961), MAT credit shall not be
available to the LLP upon conversion of a
company into LLP, i.e. the balance of MAT
credit available to the company would lapse.

SHAH THAKKAR & CO.,132


CHARTERED ACCOUNTANTS
Chapter XI: Foreign Limited
Liability Partnerships
Section 59: Foreign limited liability partnerships

• The CG has the power to make rules for


provisions in relation to establishment of place
of business and carrying on business by foreign
LLP’s within India by applying the provisions of
the Companies Act, 1956 with appropriate
modifications.

SHAH THAKKAR & CO.,133


CHARTERED ACCOUNTANTS
• As per Rule 34, a foreign LLP shall within 30
days of establishing a place of business in India,
file with the Registrar in Form 27:-
 a copy of the certificate of incorporation of LLP,
 full address of the registered/principal place of LLP
in the country of its incorporation,
 full address of the office of LLP in India (deemed
principal place),
 list of partners/designated partners, and
 names and addresses of 2 or more persons resident
in India, authorized to accept any documents on
behalf of the LLP.

SHAH THAKKAR & CO.,134


CHARTERED ACCOUNTANTS
• Where any LLP makes default in delivering to
the Registrar the names and addresses of such
authorized persons resident in India, or if at any
time any such persons are dead or have ceased
so to reside, or refuse to accept any documents
on behalf of the LLP, a document may be served
on the LLP by leaving it at, or sending it by
post to, any place of business established by the
LLP in India.

SHAH THAKKAR & CO.,135


CHARTERED ACCOUNTANTS
• The incorporation documents shall be certified
by:-

 an official of the Government/ Notary (Public)


of the country where the original is submitted
by affixing a signature or seal which is
authenticated by a Diplomatic or Consular
Officer, or

 by an officer of the LLP in the presence of a


person having authority to administer an oath

SHAH THAKKAR & CO.,136


CHARTERED ACCOUNTANTS
 However, if the LLP is incorporated in any part
of the Commonwealth, the incorporation
documents shall be certified by an official of the
Government of the country where the original is
submitted or by a Notary in that part of the
Commonwealth or by an officer of the LLP in
the presence of a person having authority to
administer an oath in that part of the
Commonwealth.

 Further, if the LLP is incorporated in a country


which is a party to the Hague Apostile
Convention, 1961, the incorporation documents
shall also be duly apostilled in accordance with
Hague Convention.

SHAH THAKKAR & CO.,137


CHARTERED ACCOUNTANTS
• Upon submission of Form 27 and payment of
filing fees of Rs.5000/- (as prescribed under
Annexure ‘A’ and required by this Chapter),
the Registrar shall issue a ‘Certificate for
establishment of place of business in India’ by
the foreign LLP in Form 30.
• However, filing fees in respect of any other
document, statement or form under this
Chapter is prescribed as Rs.1000/- under
Annexure ‘A’

SHAH THAKKAR & CO.,138


CHARTERED ACCOUNTANTS
• If any alteration occurs in the incorporation
document registered outside India, principal
place of business outside India or
partners/designated partners registered outside
India, then the foreign LLP shall file such
alterations in Form 28 with the Registrar within
60 days of the close of the financial year.
• However, if the alteration is with respect to the
certificate of incorporation, name or address of
persons authorized to accept documents on
behalf of the LLP or the principal place of the
LLP in India, Form 29 has to be filed within 30
days from the date on which the alteration
occurred.

SHAH THAKKAR & CO.,139


CHARTERED ACCOUNTANTS
• If any of the documents required to be
submitted by the LLP are not in English
language, then a certified translation thereof is
required to be filed with the Registrar,
authenticated in the prescribed manner, if such
translation is made outside India.

• However, if the translation is made within India,


it shall be authenticated by an Advocate,
CA/CS/ICWA or by an affidavit of a person
who has adequate knowledge of the original
language as well as English language.

SHAH THAKKAR & CO.,140


CHARTERED ACCOUNTANTS
• Every foreign LLP shall file with the Registrar
Statement of Account and Solvency in Form 8
within a period of 30 days from the end of 6
months of the financial year, which has to be
preserved for a period of 8 years (as prescribed
by Annexure ‘C’).
• If any foreign LLP ceases to have a place of
business in India, notice of the same shall be
sent to the Registrar in Form 29 within 30 days
of its intention to close the place of business and
thereafter the obligation of the LLP to file any
document ceases provided it has filed all other
required documents till the date of the notice.

SHAH THAKKAR & CO.,141


CHARTERED ACCOUNTANTS
Chapter XII: Compromise,
Arrangement or Reconstruction of
LLP’s

Section 60: Compromise, Arrangement or


Reconstruction of LLP’s
• Where any compromise or arrangement is
proposed between a LLP and its creditors or
partners, the Tribunal may on an application of
the LLP or creditors or partners or liquidator,
order a meeting of the creditors or partners, as
the case may be.

SHAH THAKKAR & CO.,142


CHARTERED ACCOUNTANTS
• The Tribunal shall also give directions in respect
of incidental matters such as fixing the time and
place of such meeting, giving notice of the
meeting, appointing a chairman, fixing the
quorum, etc.
• The application shall be supported by an
affidavit in Form 20 and a copy of the proposed
compromise or arrangement.
• Where the applicant is any other person other
than the LLP, a copy of the summons in Form
21 and the affidavit in Form 20 shall be served
on the LLP not less than 14 days before the date
fixed for the hearing of the summons.

SHAH THAKKAR & CO.,143


CHARTERED ACCOUNTANTS
• If the Tribunal is satisfied that all material facts
have been disclosed by the person making the
application and a majority representing 3/4th in
value at the meeting agree to any compromise or
arrangement, the compromise or arrangement
shall by order be binding on the creditors or
partners as the case may be and also on the
LLP.
• Such order shall have effect only after it has
been filed with the Registrar by the LLP within
30 days of making of such order, non-
compliance of which would attract fine which
may extend to Rs.1 lakh in the hands of every
designated partner and the LLP.

SHAH THAKKAR & CO.,144


CHARTERED ACCOUNTANTS
Section 61: Power of the Tribunal to enforce
compromise or arrangement

• The Tribunal shall have the power to supervise


the functioning of the compromise or
arrangement and also to give directions in
regard to any matter or make necessary
modifications for its proper working.
• If the Tribunal is satisfied that a compromise or
an arrangement cannot be worked out
satisfactorily, it may either suo moto or on an
application of any person interested in the
affairs of LLP, make an order for winding up
the LLP.

SHAH THAKKAR & CO.,145


CHARTERED ACCOUNTANTS
Section 62: Provisions for facilitating
reconstruction or amalgamation of LLP’s
• Where it is shown to the Tribunal that the
compromise or arrangement has been proposed
in connection with a scheme for reconstruction
of any LLP or amalgamation of any 2 or more
LLP’s and under the scheme the whole or any
part of the undertaking is transferred to another
LLP, the Tribunal may make provision for all
or any of the matters in its order which it thinks
fit, such as, transfer of the undertaking,
property or liabilities, continuation of any legal
proceedings, etc.

SHAH THAKKAR & CO.,146


CHARTERED ACCOUNTANTS
• The Tribunal shall sanction such a scheme only
on receipt of a report from the Registrar that
the affairs of the LLP have not been conducted
in any manner which are prejudicial to the
interests of its partners or to public interest.
• A certified copy of the order of the Tribunal has
to be filed with the Registrar within 30 days of
the making of the order, non-compliance of
which would attract a fine which may extend to
Rs.50,000/- in the hands of every designated
partner and the LLP.

SHAH THAKKAR & CO.,147


CHARTERED ACCOUNTANTS
• Certified copy of the orders of the Tribunal
under Chapter XII shall be preserved for a
period of 5 years (as prescribed by Annexure
‘C’).

SHAH THAKKAR & CO.,148


CHARTERED ACCOUNTANTS
Chapter XIII: Winding up and
Dissolution
Section 63 to 65: Winding up and dissolution
• The CG may make rules for the winding up and
dissolution of a LLP. It may be either
VOLUNTARY or by the TRIBUNAL in the
following cases:-

 If the LLP decides that the LLP be wound up by


the Tribunal,

 If the number of partners of LLP reduces below


2 for a period of more than 6 months,

SHAH THAKKAR & CO.,149


CHARTERED ACCOUNTANTS
 If the LLP is unable to pay its debts,

 If the LLP has acted against the interests of the


sovereignty and integrity of India, security of
the State or public order,

 If the LLP has defaulted in filing Statement of


Account and Solvency OR Annual Return for
any 5 consecutive years, or

 Any other reason which the Tribunal may find


just and equitable.

SHAH THAKKAR & CO.,150


CHARTERED ACCOUNTANTS
• A copy of the order of dissolution by the
Tribunal shall be preserved for a period of 5
years (as prescribed by Annexure ‘C’).

SHAH THAKKAR & CO.,151


CHARTERED ACCOUNTANTS
Chapter XIV: Miscellaneous

Section 66 to 81
• A partner may lend money to and transact other
business with the LLP with the same rights and
obligations as a person who is not a partner.
• The CG has the power to make any rules for
carrying out the provisions of this Act and the
power to alter any schedules to this Act.

SHAH THAKKAR & CO.,152


CHARTERED ACCOUNTANTS
• Where the Registrar has reasonable cause to
believe that a LLP is not carrying on business in
accordance with the provisions of this Act, the
name of the defunct LLP may be struck off,
after giving such LLP a reasonable opportunity
of being heard.
• Any person who is guilty of an offence under
this Act for which no express punishment is
provided under the Act, shall be liable to a fine
of Rs.5000 to Rs.5 lakhs and with a further fine
of Rs.50/day after the first day after which the
default continues.

SHAH THAKKAR & CO.,153


CHARTERED ACCOUNTANTS
THANK YOU!

SHAH THAKKAR & CO.,154


CHARTERED ACCOUNTANTS

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