LIMITED LIABILITY PARTNERSHIP LLPACT 2008 LIMITED LIABILITY PARTNERSHIP

LIMITED LIABILITY PARTNERSHIP (LLP)ACT, 2008

LIMITED LIABILITY PARTNERSHIP (LLP)ACT, 2008 • The act came into Existence in 7 th January, 2009. • The Act contains 81 Sections, 14 chapters and 4 Schedules. • The extends to whole of India.

WHAT IS LIMITED LIABILITY PARTNERSHIP (LLP) The LLP act states, “LLP means a partnership formed and registered under the act”. [Sec. 2(n)] Thus, an LLP comes into existence after its registration/corporation under LLP Act, 2008.

FEATURES OF A LIMITED LIABILITY PARTNERSHIP FIRM 1. Incorporated body – every LLP is an incorporated entity which is formed and incorporated under the provisions of the LLP Act, 2008. 2. Body Corporate – A LLP is a body Corporate registered under LLP Act, 2008. 3. Minimum and Maximum partners – An LLP shall have atleast two partners. There is no limit on maximum number of partners. 4. Separate Legal Existence – An LLP has a separate legal existence from its partners. It can enter into contract with its partners and sue on partners and can be sued by partners. 5. Perpetual succession – A LLP is a legal entity with perpetual succession. it can be wound up in accordance with the provisions of the act.

7. Partners by Agreement – The partners of a LLP are those who become partners of the LLP in accordance with the LLP agreement. However, the persons named in the incorporation document and who subscribe to the incorporation document shall become partners of it. 8. Designated Partner – Every LLP shall have at least 2 designated partners. This must be individual persons and at least one of them shall be resident of India. 9. Limited Liability – The liability of a partner in LLP is limited to his contribution to the LLP. A partner of LLP is not personally liable for any obligation or liability of LLP. 10. Common seal – An LLP can have a common seal, if it decides to have it. 11. Mutual Rights and duties of partners and LLP – the mutual rights and duties of partners are governed by LLP agreement.

FDI IN LIMITED LIABILITY PARTNERSHIPS (LLPs) Foreign direct investment (FDI) is an investment made by a company or individual in one country in business interests in another country. It can be in the form of directly establishing new business (greenfield investment) or in the form of acquiring existing businesses (brownfield investment). Under the current FDI policy, foreign investment in Indian Companies is permitted under: • the automatic route; and • the approval route (with prior approval of the Foreign Investment Promotion Board (‘FIPB’), depending on the sector in which FDI is being inducted. However, Any FDI in an LLP shall require prior Government/FIPB approval. Any form of foreign investment in an LLP, direct or indirect (regardless of nature of ‘ownership’ or ‘control’ of an Indian Company) shall require Government/FIPB approval.

ELIGIBLE INVETORS • A Person resident outside India • An Entity incorporated outside India PROHIBITED INVESTORS • • A citizen/entity of Pakistan and Bangladesh A SEBI registered Foreign Institutional Investor (FII) A SEBI registered Foreign Venture Capital Investor (FVCI) A SEBI registered Qualified Foreign Investor (QFI)

FDI in LLPs is permitted subject to the following conditions: 1. FDI is permitted in Limited Liability Partnership (LLPs) operating in sectors/activities where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance conditions. 2. An Indian company or an LLP, having foreign investment, is also permitted to make downstream investment in another company or LLP in sectors in which 100% FDI is allowed under the automatic route and there are no FDI-linked performance conditions. 3. FDI in LLP is subject to the compliance of the conditions of LLP Act, 2008. 4. A company having foreign investment can be converted into an LLP under the automatic route only if it is engaged in a sector where foreign investment up to 100% is permitted under automatic route and there are no FDI linked performance conditions.

MODE OF PAYMENT FOR AN ELIGIBLE INVESTOR: Payment by an eligible investor towards capital contribution/profit share of LLPs will be allowed only by way of cash consideration to be received – 1. by way of inward remittance through normal banking channels; or 2. by debit to NRE/FCNR account of the person concerned, maintained with an AD Category – I bank. • NRE account – Non-resident external account or Non-resident Rupee Account. • FCNR account – Foreign Currency Non-resident Account. • AD Category-1 Bank -Authorised Dealers category-1 Bank.

PRICING 1. FDI (Foreign direct investment) in an LLP (Limited liability partnerships) can be either by way of capital contribution or by way of acquisition/transfer of ‘profit shares’, would have to be more than or equal to the fair price as worked out with any valuation norm which is internationally accepted/ adopted as per market practice 2. A valuation certificate to that effect shall be issued by a Chartered Accountant or by a practicing Cost Accountant or by an approved valuer from the panel maintained by the Central Government.

REPORTING • Reporting of foreign investment in LLPs and disinvestment/transfer of capital contribution or profit shares between a resident and a non-resident may be made in a manner as prescribed by Reserve Bank of India from time to time. • All LLPs which have received Foreign Direct Investment in the previous year(s) including the current year shall submit to the Reserve Bank of India, on or before the 15 th day of July of each year, a report titled 'Annual Return on Foreign Liabilities and Assets' as specified by the Reserve Bank from time to time. ”

TAXATION OF LIMITED LIABILITY PARTNERSHIPS (LLPs)

TAXATION OF LIMITED LIABILITY PARTNERSHIPS (LLP’s) • LLPs will be treated as Partnership firms for the purpose of Income Tax and will be taxed like a partnership firm. • Tax rate 30% flat tax rate + 3% education cess • No Minimum Alternate Tax & Dividend Distribution Tax • Any form capital gains arising out of sale of assets by the LLP will be taxable under sec. 112.

ELIGIBILITY (Section 184) In order for Limited Liability Partnership to be assessed as firm as Income Tax Act, it has to satisfy the following criteria 1. The LLP is evidenced by an instrument i. e. there is a written LLP Agreement. 2. The individual shares of the partners are very clearly specified in the agreement. 3. A certified copy of LLP Agreement must accompany the return of income of the LLP of the previous year in which the partnership was formed. 4. If during a previous year, a change takes place in the constitution of the LLP or in the profit sharing ratio of the partners, a certified copy of the revised LLP Agreement shall be submitted along with the return of income of the previous years in question. 5. There should not be any failure on the part of the LLP while attending to notices given by the Income Tax Officer for completion of the assessment of the LLP.

LLP can claim the following deductions 1. Interest paid to partners, provided such interest is authorised by the LLP Agreement. 2. Remuneration (by whatever name called) to a partner will be allowed as a deduction if it is paid to a working partner who is an individual. • The remuneration paid to such working partner must be authorised by the LLP Agreement and the amount of remuneration must not exceed the given limits. • When section 184 is not complied with, no deduction towards interest and remuneration is allowed. This is the mandate of the section 185.

Steps for Computation of taxable income of a LLP • Find out the firms income under the different heads of income, ignoring the prescribed exemptions. The heads of income for partnership firms are: 1. 2. 3. 4. Income from House Property Profits and Gains of Business or Profession Capital Gains Income from other sources including interest on securities, winnings from lotteries, races, puzzles, etc. ('Salary' income head is not included) • Make Deductions: The payment of remuneration and interest to partners is deductible if conditions of section 184 and section 40(b) of the Income Tax Act are satisfied. Any remuneration which is due to or received by partners is allowed as a deduction from income of the partnership firm and the same is taxable in the hands of partners. Any payment of remuneration in excess of the limits prescribed will not be allowed to deducted out of the total taxable income. • Make adjustments on account of brought forward losses/ disallowances of interests etc. paid by firm to its partners. The total income so obtained is the “Total Taxable Income”.

IMPORTANT POINTS: • Payment of remuneration in excess of the limits prescribed will not be allowed to deducted out of the total taxable income. • Partners are allowed to claim only 12% P. A. Of simple interest on the invested capital. If the interest is higher than 12% P. A. than income tax will be charged. • Sleeping partners are not entitled to remuneration. • Remuneration is calculated on the book profit which is calculated under sec 28 to 44 D. • The profit received by partner cannot be taxed, since the firm has already been taxed. The interest and remuneration is taxable when partners file their individual return. • Designated Partners will be liable to sign and file the Income Tax return. • Remuneration and Interest on Capital paid to partners will be taxable in partner‘s hands as ―Income from Business and Profession‖ to the extent these have been allowed as deduction in LLP‘s hands. • Remuneration to working partners allowed as deduction subject to compliance with the provisions of section 40 (b) and section Interest on capital can be paid to the partners of the LLP. It shall be allowable as a deductible expense n 184. • No taxable capital gain on conversion of general partnership firm into LLP. • Conversion of private companies /unlisted public companies into LLP‘s are not expressly exempted from capital gains taxation by the Act.

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