limited liability partnership - sirc有限责任合伙sirc课件

LIMITED LIABILITY PARTNERSHIP RECENT DEVELOPMENTS By Dr.B RAVI M.B.A.,F.C.S.,Ph.D., PRACTISING COMPANY SECRETARY OLD NO 16, NEW NO 42, RATHINAM STREET GOPALAPURAM, CHENNAI 600 086.1055 / 98400 82545 E MAIL .in ,LLP A NEW BUSINESS MODEL NEED AND THE NECESSITY TO HAVE THE NEW BUSINESS MODEL KEY FACTORS: EXPECTATION FROM THE CLIENT IS ON THE INCREASE COST VERSUS BENEFIT IN RENDERING SERVICE INCREASED VISIBILITY COMPREHENSIVE VALUE BASED ADVICE SHARING OF EXPERTISE,MULTIDISCIPLINARY PRACTICE Vs MULTIDISCIPLINARY PARTNERSHIP,THE ACTIVITIES OF A PROFESSIONAL SERVICE FIRM WITH COMPETENCIES IN MORE THAN ONE DISCIPLINE OR THE CO-ORDINATED ACTIVITIES OF PROFESSIONALS IN SEPARATE ENTITIES.,MULTIDISCIPLINARY PRATICE,THE LEGAL RELATIONSHIP AMONG THE PRINCIPALS OF A PROFESSIONAL SERVICES FIRM, SERVING ESSENTIALLY AS A PROXY FOR OWNERSHIP AND CONTROL,MULTIDISCIPLINARY PARTNERSHIP,MCA HAS SPECIFIED FIVE NEW CATEGORIES OF PROFESSIONALS APART FROM CA, CS AND CMA WHO ARE ELIGIBLE FOR FORMING FIRMS UNDER THE LLP ACT VIZ, ENGINEERS, LAWYERS, ARCHTECHS, ACTUARIES AND FINANCIAL MANAGEMENT CONSULTANTS.,COMBINATIONS,THE PROFESSIONAL BODIES WHICH REGULATES THE PROFESSION ARE READY. PARLIAMENT HAS ACCORDED ITS APPROVAL ON 8TH JANUARY 2012 . INSTITUTUES GUIDELINES AND THE CREATION OF MDP TO FOLLOW SUIT. A LONG WAY TO GO FOR RECIPROCAL RECOGNITION FROM COUNTIRES OUTSIDE INDIA.,WHERE ARE WE IN MDP,POWER OF REGISTRATION OF LLP AND ALL MATTERS CONNECTED WITH LLP WILL BE DELEGATED TO ROC EXPECTED FROM 01.06.2012 NEW FORMS AND RULES TO MEET THE PROPOSED DECENTRALIZATION IS IN PLACE AND NOTIFICATION WILL BE ISSUED SHORTLY.,DECENTRALIZATION,EFFECTIVE 21ST MAY 2011 THE LLP SITE WILL NOT ACCEPT NAME AVAILABILITY APPLICATION AND WILL BE KEPT SUSPENDED FOR THE DECENTRALIZATION PROCESS,NAME AVAILABILITY,First LLP registered on 02.04.2009 9200 APPROX. AS ON DATE (9009 LLPs are registered as of 01-05-2012 10:00:00Hrs) 36 COMPANIES NOTIFIED FOR STRIKE OFF!,STATISTICS,THE MAIN REASON FOR THE GROWTH AND FALL OF LLP. INCENTIVES OFFERED SUBSEQUENTLY WITHDRAWN WAREHOUSING AND LOGISTICS,FRACTURED GOVERNMENT POLICY,WHEN CONVERSION TO TAKE PLACE? LACK OF AWARENESS AMONG BANKS/BANKERS. MISCONEPTION OF THE PROMOTERS MCA INITIATIVES JOINTLY WITH RBI.,SECURED LOANS,FILING OF FORM NO 8 OPTIONAL IF PROPOSE TO FILE THEN MANNER OF FILING AND TIMING LIMIT WITHIN WHICH TO BE FILED ARE PRESCRIBED. FILING OF FORM NO 8 DETAILS OF SECURED LOANS PARTICULARS MANDATORY ANNUALLY. DUE DATE: 30TH OCTOBER FOR FORM 8 AND 30TH MAY IS FOR FORM NO 11.,SECURED LOANS CONTD.,FDI IN LLP,The Cabinet Committee of Economic Affairs (CCEA) approved Foreign Direct Investment (FDI) in Limited Liability Partnership (LLP) firms on 11th May 2011. Key features of the FDI policy for LLPs: Permitted Sectors: FDI in LLP is permitted only in those sectors/ activities where 100% FDI is permitted through automatic route.,2. Prohibited Sectors a) Sectors which are prohibited for FDI like - agriculture, plantation, print media, real estate b) Sectors which are restricted with caps like telecom c) Sectors which are under the FIPB approval route d) FDI under automatic route with conditions 3. Approvals Required: Prior approval from the Foreign Investment Promotion Board (FIPB) will be required for FDI in LLP.,External Commercial Borrowings: LLPs will not be permitted to avail external commercial borrowings 5. Downstream investments LLPs with FDI are not being eligible for making any downstream investment. b) However, an Indian Company with foreign investment can make downstream investment into LLP, provided both the Company and LLP, operate in sectors where 100% FDI is allowed, through the automatic route.,Designated Partner a) A “person resident in India” as defined under the Foreign Exchange Management Act, 1999 or b) If the LLP has a body corporate as a designated partner, the body corporate should only be a Company registered under the Companies Act and not any other body, such as an LLP or a trust. 7. Transition from Company to LLP 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.,REALITY,MCA DO NOT PERMIT FDI IN LLP,LACK OF HARMONIZATION,FDI POLICY STATES FIPB APPROVAL AUTOMATIC ROUTE ETC., RBI HAS ISSUED A CIRCULAR EARLIER AND ALSO ADVISED MCA NOT TO REGISTER LLP WITH FDI NOT TO PERMIT FDI IN LLP UNLESS IT IS IN ACCORDANCE WITH FEMA NOTIFICIATIONS AND FIPB APPROVAL. FDI POLICY HAS COVERED THE FIPB PART. RBI YET TO NOTIFY FEMA REGULATIONS.,BIRTH CHART OF LLP,15.12.2006 BILL INTRODUCED IN RAJYA SABHA REFERRED TO: PARLIMENT STANDING COMMITTEE. 27.11.2007-REPORT SUBMITTED BY THE COMMITTEE BEFORE LOK SABHA AND RAJYA SABHA. 21.10.2008-REVISED BILL AFTER COMMITTEES REPORT INTRODUCED IN RAJYA SABHA. LIMITED LIABILITY PARTNERSHIP BILL 2008. EARLIER BILL 2006 WAS WITHDRAWN. 24.10.2008 : RAJYA SABHA PASSED THE BILL 12.12.2008 : LOK SABHA PASSED THE BILL 07.01.2009 : RECEIVED THE ASSENT OF THE PRESIDENT 09.01.2009:PUBLISHED IN THE GAZETTE OF INDIA 31.03.2009: ACT WAS NOTIFIED 01.04.2009: RULES WERE NOTIFIED,WHY LLP,NEED WAS FELT TO HAVE AN ALTERNATIVE CORPORATE BUSINESS VEHICLE WITH THE BENEFITS OF LIMITED LIABILITY AND FLEXIBILITY TO MEMBERS TO ORGANIZE THEIR INTERNAL STRUCTURE AS A PARTNERSHIP BASED ON MUTUALLY ARRIVED AGREEMENT.,SCHEME OF THE ACT,NUMBER OF CHAPTER/SECTIONS : 14/81 NUMBER OF SCHEDULES : 4 NUMBER OF RULES : 2 (LLP RULES 2009) AND (LLP WINDING UP AND DISSOLUTION RULES 2010) Except Secs. 2(1)(c) & (u), 51, 55-58, 63-65, 72 & 73 Act came into force on 31.3.2009 Secs.55-58, Second, third and fourth schedule came into force on 31.5.2009 Rules 1-31, 34-37 & 41 came into force on 01.04.2009 Rules 32 and 33 and 38 to 40 came into force on 31.5.2009. Winding up rules came into force from 30.03.2010. WHEN LLP IS ALIVE: 31 FORMS. WHEN LLP WANTS TO DIE: 91 FORMS,APPLICABILITY,INDIAN PARTNERSHIP ACT SHALL NOT APPLY PROVISIONS OF COMPANIES ACT TO THE EXTENT NOTIFIED BY CENTRAL GOVERNMENT SHALL APPLY AS IT IS OR WITH MODIFICATIONS. PROVISIONS OF OTHER LAWS ARE NOT BARRED. THEY ARE APPLICABLE TO LLP IN ADDITION TO LLP ACT.,JURISDICTION OF THE ACT OF TRIBUNAL OF COURT and APPELLATE TRIBUNAL Act extends to Tribunal shall Judicial Magistrate of the Whole of India exercise such First Class as the case may powers and functions be the Metropolitan conferred on it Magistrate shall have Under this act jurisdiction to try any Or under other laws. Offence under this Act. Aggrieved by the Have power to impose order of Tribunal punishment in respect of appeal before of such offence. Appellate Tribunal 10FQ/FZA/G/GD/GE/GF of the Companies Act will apply.,NATURE OF LLP,ON INCORPORATION : BODY CORPORATE SEPARATE LEGAL ENTITY PERPETUAL SUCCESSION CAPABLE OF SUING AND BEING SUED. CAN HOLD PROPERTY. HAVE A COMMON SEAL DOING AND SUFFERING OTHER THINGS AND ACTS AS THE BODIES CORPORATE MAY LAWFULLY DO AND SUFFER. NAME OF EVERY LLP SHALL END WITH THE WORDS LIMITED LIABILITY PARTNERSHIP ORLLP,IMPORTANT DEFINITIONS,BODY CORPORATE(LLP, LLP/outside India/ company incorporated outside India.) does not include BUSINESS INCLUSIVE DEFINITION (every trade, profession, service and occupation) FINANCIAL YEAR 1/4 TO 31/3. IF INCOROPORATED AFTER 30/9 FINANCIAL YEAR MAY END ON THE 31/3 OF THE YEAR NEXT FOLLOWING THAT YEAR. FOREIGN LLP EXHAUSTIVE DEFINITION.,LLP AGREEMENT,WRITTEN AGREEMENT BETWEEN PARTNERS OF LLP OR LLP AND ITS PARTNERS DETERMINES THE MUTUAL RIGHTS AND DUTIES OF PARTNERS AND THEIR RIGHTS AND DUTIES IN RELATION TO THAT LLP. FIRST SCHEDULE TO LLP ACT TWO OPTIONS: OWN AGREEMENT OR ADOPT LLP AGREEMENT AGREEMENT IN WRITING WHEN EXISTS BEFORE INCORPORATION OF LLP IMPOSE ON LLP WHEN RATIFIED BY ALL THE PARTNERS OF LLP.,PIERCING THE LLP VEIL: THE PROCESS OF IMPOSING INDIVIDUAL AND PERSONAL LIABILITY ON THE PRINCIPALS IN A LLP IS REFERRED TO AS PIERCING OF CORPORATE (PARTNERHIP) VEIL OR DISREGARDING THE CORPORATE ENTITY,PARTNERS,INDIVIDUAL OTHER THAN UNSOUND MIND/UNDISCHARGED INSOLVENT/APPLIED TO BE ADJUDICATED AS AN INSOLVENT AND APPLICATION PENDING. BODY CORPORATE MINIMUM : TWO PARTNERS MAXIMUM: NO LIMIT IMPACT OF PARTNERSHIP ACT AND COMPANIES ACT. WHEN THE MINIMUM FALLS BELOW TWO AND LLP CARRIES ON BUSINESS FOR MORE THAN 6 MONTHS - PERSONALLY LIABLE FOR THE OBLIGATIONS OF LLP DURING THAT PERIOD.,PARTNERS CONTD,ADMISSION OF MINOR TO BENEFIT OF PARNERSHIP: No specific provision in the LLP act. a partner has to sign the LLP agreement and is bound by it and is entitled to vote. thus, a minor cannot be a partner. DEEMED/SHADOW PARTNER: Similar to the concept of SHADOW DIRECTOR. If the partners are collectively accustomed to act in accordance with the instructions of particular person (except for professional advisory capacity) that person is a deemed or shadow partner,ADMISSION AND CESSATION OF PARTNERS TWO MODES TO BECOME A PARTNER: BY BEING A SUBSCRIBER IN ACCORDANCE WITH LLP AGREEMENT. TWO MODES OF CEASING TO BE A PARTNER: OPTIONAL AS PER AGREEMENT OR NOTICE IN WRITING NOT LESS THAN 30 DAYS TO THE OTHER PARTNERS INTENTION TO RESIGN. COMPULSORY: DEALTH OR DISSOLUTION OF LLP OR ON BECOMING DISQUALIFIED TO BE A PARTNER. IMPORTANCE OF NOTICE OF CESSATION AND THE OBLIGATIONS OF OUTGOING PARTNER/S.,ENTITLEMENT ON CESSATION,IN ACCORDANCE WITH LLP AGREEMENT. ENTITLED TO REECEIVE FROM LLP AN AMOUNT EQUAL TO THE CONTRIBUTION ACTUALLY MADE AND SHARE IN ACCUMULATED PROFITS AFTER DEDUCTING THE ACCUMULATED LOSSES AS ON THE DATE OF CESSATION. NO RIGHT TO INTERFERE IN THE MANAGEMENT OF LLP.,CHANGES AND INTIMATION,Change in the name and address of partner/s: Obligation on the partner to intimate LLP within 15 days of change. LLP to intimate the change to ROC within 30 days of such change. Appointment / cessation LLP intimate ROC within 30 days of the event. Consent letter from the incoming partner is mandatory. Designated partner shall sign the forms of intimation. Outgoing partner right to intimate ROC of his cessation.,DESIGNATED PARTNERS,Minimum two designated partners who are individuals is mandatory. One of them shall be a resident in India. (Resident means a person who has stayed in India for a period of not less than 182 days during the immediately preceding one year). One should necessarily be a partner to become a designated partner. Prior consent to act as such should be given in Form No: 9 to LLP. The incorporation document shall specify the name of the designated partners. In the alternate the incorporation document may state that each of the partners from time to time of LLP is to be designated partners and in which event every partner shall be a designated partner.,INTERGRATION OF DIN WITH DPIN With effect from 9.7.2011, no fresh DPIN will be issued. Any person, who desires to become a designated partner in a Limited Liability Partnership, has to obtain DIN by filing e-form DIN-1. If a person has been allotted DIN, the said DIN shall also be used as DPIN for all purposes under Limited Liability Partnership Act, 2008.,If a person has been allotted DPIN, the said DPIN will also be used as DIN for all the purposes under Companies Act, 1956. If a person has been allotted both DIN and DPIN, his DPIN will stand cancelled and his DIN will be used as DIN as well as DPIN for all purposes under Limited Liability Partnership Act, 2008 and Companies Act, 1956.,As per Circular no. 32/2011 dated 31.05.2011, the Ministry has made Income Tax Permanent Account Number (PAN) mandatory for obtaining DIN for Indian nationals. Further, all existing DIN holders, who have not furnished their PAN at the time of obtaining DIN, are required to furnish their PAN to the Ministry by filing e-form DIN-4 by 30th September, 2011.,Similarly, all DPIN holders, who had not furnished their PAN at the time of obtaining DPIN, are required to furnish their PAN to the Ministry by filing e-form DIN-4 by 30th September, 2011, failing which their DPIN/DIN will be disabled and they will also be liable for heavy penalty. The time limit from 30th September, 2011 has been extended from time to time and the last date of extension as per General Circular No:4/2012 dated 09.03.2012 is upto 30.04.2012.,Vacancy in the office of Designated partner shall be filled in, within 30 days of the vacancy, default of which or there is only one designated partner, then each partner shall be deemed to be a designated partner. In case of LLP in which all the partners are bodies corporate or in which one or more partners are individuals and bodies corporate, at least two individuals who are partners of such LLP or nominees of such bodies corporate shall act as designated partners.,DESIGNATED PARTNERS LIABILITIES,Responsible for doing all the acts, matters and things as are required to be done by the LLP in respect of compliance of the provisions of this Act including filing of any document, return, statement and the like report pursuant to the provisions of this LLP law and as may be specified in the LLP agreement. Liable for all penalties imposed on the LLP for any contravention of those provisions.,LLP AND PARTNERS - LIABILITY,Every partner is an agent of LLP and not of other partners fundamental departure from partnership law. LLP NOT liable when the act of the partner is without authority. LLP is liable for wrongful act or omission on the part of the partner in the course of business of LLP or with its authority. PARTNER IS NOT PERSONALLY LIABLE AND THE LIABILITIES OF LLP MET OUT OF PROPERTY OF LLP. DISTINCT ADVANTAGE . PARTNER Personally liable for his own wrongful act or omission and not that of other partners.,UNLIMITED LIABILITY,IF THE INTEND IS TO DEFRAUD CREDITORS/ANY OTHER PERSON OR ANY FRADULENT PURPOSE NOTE THE LIABILITY IS RESTRICTED TO LLP AND THE CONCERNED PARTNER. LLP WILL NOT BECOME LIABLE IF THE PARTNER HAS DONE WITHOUT AUTHORITY. AFFAIRS FRADULENT MANNER LIABLE TO PAY COMPENSATION TO THE AGGREIVED PERSON INDEPENDENT OF CRIMINAL PROCEEDINGS.,RIGHTS OF PARTNERS,SHARE IN THE PROFITS AND LOSSES TO RECEIVE DISTRIBUTION AS PER LLP AGREEMENT. RIGHT TO TRANSFER ANY OF THE ABOVE OR BOTH IN WHOLE OR IN PART. TRANSFER DOES NOT RESULT IN DISASSOCIATION OF PARTNER OR DISSOLUTION OF LLP AND WINDING UP. THE TRANSFEREE IN THE ABOVE CASE GETS NO RIGHT TO PARTICIPATE IN THE MANAGEMENT OR ACCESS INFORMATION ABOUT LLP.,SPECIAL ATTRACTION,WHISTLE BLOWING. HOLDING OUT. LIABILITY OF A PARTNER AFTER HIS DEATH. CONVERSION FROM FIRM TO LLP; PRIVATE COMPANY TO LLP AND PUBLIC COMPANY TO LLP. EFFECT OF CONVERSION IMPACT OF EXISTENCE OF SECURED CREIDTORS BEFORE CONVERSION SIGNIFICANCE OF TRANFER AND VESTING.,SPECIAL ATTRACTION CONTD.,COMPOUNDING OF OFFENCES DESTRUCTION OF RECORDS GENERAL PENALTIES ENFORCEMENT OF DUTY TO MAKE RETURNS POWER OF REGISTRAR TO STRIKE THE DEFUCNT LLP FOREIGN LIMITED LIABILITY PARTNERSHIPS. TRIBUNAL,INCORPORATION OF LLP,CENTRAL REGISTRATION IMPACT OF SEC.11(1)(b) of the Act. Definition of the term Registrar: Sec.2(s) Usage of the term State. LEGALITY OF THE CENTRAL REGISTRATION DEBATABLE.,BULLET POINTS,Minimum two partners Lawful business with a view to profit (can sec.25 company be formed as LLP) Incorporation document submission with ROC of state in which registered office is to be situated. Statement of declaration. Registrar issuing certificate conclusive evidence. Name to end with the words LIMITED LIABILITY PARTNERSHIP OR LLP .,BULLETS - CONTD.,RESERVATION OF NAME CHANGE OF NAME RECTIFICATION OF NAME. (24 MONTHS) REGISTERED OFFICE MANDATORY COMMUNICATION TO BE ADDRESSED TO THE SAID ADDRESS CHANGE POSSIBLE INTIMATION REQUIRED.,FINANCIAL DISCLOSURES,Can follow cash basis or accrual basis Books shall be maintained at the Registered office. Statement of Account and Solvency within 6 months from the end of the financial year signed by designated partners filed with Roc. Accounts shall be audited as per rules Chapter VII of the Rules - Rule no 24 (23 points),FINANCIAL DISCLOSURES CONTD.,Accounting records to disclose with reasonable accuracy the financial position of LLP. To be preserved for 8 years. Accounts shall be audited exemption if the turnover does not exceed in any financial year Rs.40 lacs or its contribution does not exceed Rs.25 lacs. (partners are at liberty to have the audit as may be decided by them in respect of exempted categories.) Statement from partners mandatory for enjoying the exemption.,AUDITORS,TO BE APPOINTED WITHIN 30 DAYS BEFORE THE END OF THE FINANCIAL YEAR. (BY DP) FOR THE FIRST FINANCIAL YEAR AT ANY TIME BEFORE THE END OF THE FIRST FY. DESIGNATED PARTNER HAS THE POWER TO FILL UP CASUAL VACANCY IN THE OFFICE OF AUDITOR AND ALSO TO FILLUP THE VACANCY CASUED BY REMOVAL OF AUDITOR. - WHERE DP DEFAULTS PARTNERS MAY APPOINT. (When) CA IN PRACTICE ALONE CAN BE APPOINTED. (FIRM?) REMUNERATION DP TO FIX OR AS PER LLP AGREEMENT REMOVAL LLP AGREEMENT OTHERWISE CONSENT OF ALL PARTNERS. RESIGNATION NOTICE TO BE DEPOSITED AT THE REGISGTERED OFFICE WITH STATEMENT OF REASONS.,LLPS CAN NOW ACT AS STATUTORY AUDITORS Section 266(3)(a) of Companies Act, 1956 disqualifies a Body corporate from being appointed as statutory auditor. MCA, vide circular no: 30A/2011 dated 26.05.2011 has clarified the term Body corporate for the purposes of Section 266(3)(a) of Companies Act, 1956. By virtue of the circular LLPs of Chartered Accountants are detached from the definition of body corporate for the limited purpose of Section 226(3)(a) of the Companies Act.,ANNUAL RETURN,MANDATORY WITHIN 60 DAYS FROM THE END OF THE FINANCIAL YEAR CERTIFICATE FROM COMPANY SECRETARY VERFIED THE BOOKS AND RECORDS OF THE LLP AND FOUND THEM TO BE TRUE AND CORRECT.,TAXATION OF LLPS,DISTINCT FEATURES Tax provisions for LLPs were introduced by the union budget 2009-10. Section 2(23) of the Income Tax Act has been amended by the Finance Act, 20