LLP in India by LLPonline

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									LLP MANTRA
(Volume – II)

www.LLPonline.in

Insight

Particulars Regular Section - Opportunities in LLP for Manufacturing & Service News in LLP Grey Issues in LLP Practical tips for e – Filing on llp.gov.in Partners Segment on Global Comparison Recent Queries on LLP Club What’s New on LLPonline.in Public Opinion

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Regular Section - Opportunities in LLP for Manufacturing & Service Sector

LLP has an immense role to play in the Manufacturing Sector. Around 95% of industrial units in the country are SMEs (Small and Medium Enterprises) and the manufacturing sector is dominated by these SMEs. About 40% of value addition in the manufacturing sector takes place in the segment. Over 90% of these SMEs are registered as proprietorships, about 2%to 3% as partnerships and less than 2% as companies as per a survey conducted by the ministry of small-scale industries. The reason of Non presence of Corporate Form in the manufacturing Sector is high Compliance cost. Vice – Versa the presence of Proprietorship is due to complete flexibility and less compliance cost. But for this gain the sector is losing the credit facility from the bankers. Now the Limited Liability Partnership form has opened the door for Manufacturing Sector to enjoy the dual advantage of less compliance with higher access to credits in the market. Another advantage for SMEs that in the new LLP form alike Companies, only the Limited Liability Partnership having turnover/contribution of more than Rs. 40/25 Lacs have to get their accounts audited as per the requirement of law providing a step ahead in the flexibility. SMEs would benefit most from LLP form, as it would allow an entrepreneur to get into the business without exposing his full assets to it. In an increasingly litigious market environment, the prospect of being a member of a partnership firm or Proprietorship with unlimited personal liability is considered risky and unattractive and on the other side the corporate form is expensive for SMEs. LLP provides a bridge between the two risks where an entrepreneur would be able to foray into a business venture without any fear of being held liable for the partners' misconduct. Service Sector LLP has come like boon for the service sector and especially for professionals like chartered accountants/company secretaries & advocates. Now, LLP will give the professions the much needed impetus of global presence and level playing field against their foreign counterparts. From the perspective of customers, Limited Liability Professional Partnership concerns will provide a single-window shop to all people wanting to avail professional services.
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From the perspective of professionals, the regime of limited liability partnership will provide a platform to conduct profession efficiently that would in turn increase the capability to compete with global firms apart from making the presence felt in international market for professional services. The introduction of LLP form of business would also promote entrepreneurship, particularly in relation to the knowledge-based industries such as the information technology and biotechnology sectors.

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News in LLP

Taxability of LLP: The government will amend the Income Tax Act later this year to provide a tax regime for LLPs, which are being incorporated from the beginning of this month, a finance ministry official said. Stamp duty & Taxability on Conversion: The government may exempt partnership firms and limited companies from paying stamp duty while converting into limited liability partnerships (LLPs), a way of doing business that is favored globally for its flexibility. “Tax neutrality is essential for the conversion of companies and partnership firms into LLPs,” The proposed move will effectively address the difficulties in getting stamp duty exemptions from state governments. The finance ministry, however, may insist that the shareholding pattern of the company or the partnership firm from which assets are transferred to an LLP, and the shareholding of the receiving LLP be the same. “This is important to prevent any stamp duty evasion on asset sale or transfer under the garb of conversion to LLPs,” said the finance ministry official. Once the assets and liabilities of a partnership firm or a limited company are transferred to an LLP, the original entity will be dissolved and removed from government records. Source: The Economic Times Dated: 28th April 2009.

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Grey Issues in LLP
Limited Liability Partnership still the hot Zone among the professionals because of the unnoded issues, everyone is looking forward. Some of the brain storming issues llponline.in is sharing with you 1. Form of Contribution: Section 32 provides the option to have the contribution of the Partners in the Intangible Form and further the rules provide that the intangible contribution should be certified by Practicing Chartered Accountant but no specific rules has been prescribed for such valuation there should be proper guidelines for the valuation of the Intangible Contribution. Further if the value of the Intangible contribution amplified in future how that increment would be count in the books. 2. Discretionary LLP Agreement: LLP Agreement is not a requisite for the formation of a Limited Liability Partnership as of now and in the absence of LLP Agreement Schedule 1 of LLP Act would be applicable defining the mutual rights and liabilities of the Partners & the Partnership. However Schedule 1 in itself is an incomplete picture to define the rights and liabilities of the partners. Various issues like Investment in body Corporate, disclosure of substantial interest, decisive percentage of the partners, donations, Charity by LLP are silent in the Schedule which in turn would give rise to disputes among the partners. To avoid such circumstances either the LLP Agreement should be mandatory or the Schedule 1 to be redrafted to present the widest picture. 3. Overriding Effect of LLP Act or the LLP Agreement: The LLP Law is silent on the overriding effect of LLP Act on the LLP agreement as compared to Section 9 of the Companies Act, 1956 wherein it is specifically provided that Companies Act would override to contrary provisions provided in the Memorandum and Articles of Association of any Company. No such provision is provided under LLP Act 2008 clarifying the position of the Act and the agreement in case of contradiction. For example Section 42 of the LLP Act provides that any partner can transfer his rights as per the LLP Agreement. Here the Act provides the right to transfer for a partner, What if the agreement says that no partner can transfer his right. Whether the agreement would prevail over the Act?

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Practical Tips for e – filing on llp.gov.in

Reflecting light on e Filing concept some of the queries from our query bank before you eradicating the murky side of the Concept: Do we need to register for e – filing on llp.gov.in? Yes, as on date the registration should be in the Business user Category for e-filing. What is the requirement for registration as Business User? The intended user must have Permanent Account Number & Digital Signature Certificate for registration in the Business User category. Whether registration of DSC is necessary for e-filing on llp.gov.in? Yes DSC for e-filing has to be registered but DSC of Designated Partners is only required to be registered. What precaution you should keep in mind while registering your DSC? Before registering your DSC, user have to export the CER file (Public Key) of his DSC on system and this file is registered on LLP Portal. Later at the time of e –filing the attached signatures are verified with this registered CER file. Whether e form can be saved? Yes the e Form can be saved on the system if the Google Gear has installed on your system but the user will not be able to upload the same. Is there any software requirement for e-Filing on llp.gov.in? The users must have google gears and Java Run time version 6 on his system.

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What are the fee payment modes available for e-filing on llp.gov.in? Currently, only payment by credit card has been activated. We are doing the e-filing but it is showing "Signature Verification Error"? If it is showing "Signature Verification Error", please check the following: a) You are doing e-filing with the login of Designated Partner. b) The CER file of the Designated Partner is registered on the portal and you are using the Digital Signature of that Designated partner. c) You have Java Run Time Environment software installed on your system.

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Partners Segment on Global Comparison
Facts Introduction Law LLP UK of In the Year 2000 with the nomenclature Limited Partnership Act, 2000 Singapore LLP In the Year 2005 with the nomenclature Limited Partnership Act, 2005 US (California) LLP In the year 1991 in Texas thereafter in 1996 in most states of USA with the nomenclature Uniform Partnership Act of 1996. Minimum 2 Partners Law is silent on this matter. Indian LLP In the Year 2008 with the nomenclature Limited Partnership Act, 2008

No. of Partners

Minimum 2 Partners

Reduction of In case of reduction Minimum Number of minimum no. of of Partners partners for more than 6 months the liability of Partners will be unlimited after 6 months.

Admission Partners

of As per LLP Agreement and in the absence of agreement consent of all partners is required. of In accordance with LLP Agreement and in the absence of the agreement by giving reasonable notice. of Limited Liability of Partners except in case of fraud.

Cessation Partners

Liability Partners

Minimum 2 Partners In case of reduction of minimum no. of partners for more than 2 years the liability of Partners will be unlimited after 2 years. As per LLP Agreement and in the absence of agreement consent of all partners is required. In accordance with LLP Agreement and in the absence of the agreement by giving 30 days prior notice. Limited Liability of Partners except in case of fraud.

Minimum 2 Partners In case of reduction of minimum no. of partners for more than 6 months the liability of Partners will be unlimited after 6 months.

As per agreement.

As per agreement

the As per LLP Agreement and in the absence of agreement consent of all partners is required. the In accordance with LLP Agreement and in the absence of the agreement by giving 30 days prior notice

Limited Liability of Limited Liability of Partners except in Partners except in case of fraud. case of fraud.
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Recent Queries on LLP Club
(Podium for LLP discussion on LLPonline.in)

LLP Agreement refers agreement between the partners or between LLP and its partners. What are the standard specific clauses required to be covered by both the agreements? As per LLP Act, a former partner is entitled to receive from LLP, capital contribution made and his right to share in accumulated profits of LLP. What is the meaning of ‘right to share in accumulated profits’? What about his right to get share in the goodwill/ capital appreciation/ fair value of business ownership? As per Section 28(2) a partner is personally liable for his wrongful act and omission. What is meaning of wrongful act or omission? Most Striking query of the week submitted by Mr. Vikas Sharma

One of the Designated Partner has to be resident in India and the definition of resident in India means as per explanation given in Section-7(1), ‘a person who has stayed in India for a period of not less than 182 days during the immediately preceding one year’. Whether he need to be resident in India during every preceding year, while he is Designated Partner.

To check out the views of other professional colleagues or to submit your view log in to http://www.llponline.in/forum/

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What’s New on LLPonline.in?

LLPonline.in has introduced the e – filing zone on its portal for assisting the users on the e- filing aspect of Incorporation of LLP. Besides giving the complete procedural step from registration to formation, the zone introduces you with the practical aspects to be taken care at the time of e-filing. Useful Presentation on e-filing acquainting the user with the steps of e-filing on www.llp.gov.in Steps to download the CER certificate required to register as a Business user on the Government Portal. To be benefited from e filing Zone log in to http://www.llponline.in/e_filling_zone.php

Public Opinion

Our Poll of the week “whether existing Partnership Firm should convert into LLP” was favored by 83% while 17% opinion was against the conversion. To count your vote on” whether Schedule I of the LLP Act should be more exhaustive like Table A in Companies Act, 1956” log in to www.LLPonline.in.

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Our Team:
Ankit Singhi – 011-40622208 Asst. Manager, Corporate Affairs & Compliances E mail: ankit@indiacp.com

Shipra Wadhwa-011-40622246 Associate, Corporate Affairs & Compliances E mail: shipra@indiacp.com

From the house of

Corporate Professionals (India) Private Limited D-28, South Extn. Part-I, New Delhi-110049, Ph: 011-40622200; Fax: 011-40622201. Email: info@indiacp.com & info@LLPonline.in

Disclaimer: This paper is a copyright of Corporate Professionals (India) Pvt. Ltd. The entire contents of this paper have been developed on the basis of latest prevailing Limited Liability Partnership Act, 2008 in India. The author and the company expressly disclaim all and any liability to any person who has read this Newsletter or otherwise, in respect of anything, and of consequences of anything done or omitted to be done by any such person in reliance upon the contents of this Newsletter.

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