In Limited Liability Partnership or LLP under LLP Act 2008, where all or some of the partners have limited liability as per the shares and offers them protection from misdeeds, negligence, and incompetence of other partners. However, the liability of partners is unlimited in case of fraud committed by LLP. The LLP Agreement regulates the conduct of business. Section 56 of LLP Act 2008 provides that Private Companies convert into LLP. Due to the benefits listed down, Companies are converting themselves into LLP because of:
- Tax benefits:
by converting into LLP, the company saves Dividend Distribution Tax, Minimum Alternative Tax, and Income Tax because interest and remuneration are paid to partners as a salary that is payable to directors.
Earlier there was no capital gains tax when existing entity converted into LLP but after the amendment of 2016, a company having assets in excess of Rs 5 crore in any of three preceding years has to pay capital gains tax.
- Less Statutory Compliance:
compared to statutory compliance of a private limited company as per Companies Act 2013 an LLP gets relief in the form of
- No requirement to maintain statutory record registers.
- No requirement to pass resolutions for addition or deletion of Directors, increasing capital.
- No such requirement to hold a Compulsory annual meeting.
- No conditions or cap for loans except what is stated in LLP Agreement.
- Compulsory Audit only if Turnover is above 40 lakhs.
One of the areas where the company had an upper hand over the LLP was that the LLP was not an eligible entity for claiming tax incentives (100% deduction for 3 years) offered to startups as provided by the draft Finance Bill, 2016. However, the Finance Act, 2016 has eliminated this disparity by extending this benefit to LLPs. Thus, where startups do not intend to raise funds from the public, LLP seems a good start for the initial setup.
Conditions for conversion of Private Companies into Limited Liability Partnership:
A company is converted into LLP by complying with the provision of Schedule 3 of LLP Act 2008 and can do so only if (a) There is no security interest in its assets subsisting or in force at the time of application; and (b) The partners of the limited liability partnership to which it converts comprise all the shareholders of the company and no one else.
The procedure of conversion:
- In order to get converted into LLP, every designated partner must possess Director Identification Number. A meeting of Board of Directors must pass a resolution for conversion of Company into LLP as well as to authorize a director to apply for the name of LLP. A copy of this resolution is to be attached with e-form LLP-1 with Registrar of Companies (ROC).
- Once registrar issues name approval Certificate, Incorporation Documents as the address of registered office of LLP, notice of consent of Designated Partners, Details of LLP(s) or companies in which designated partner is a director are filed using E-form 2 with ROC.
- E- Form 18 is filed with ROC for application of Conversion along with certain attachments as a statement of shareholders, assets and liabilities of the company, NOC from IT authorities and list of all secured creditor along with their consent.
- Registrar of LLP issues a Certificate of Registration as per the provisions of this act and may refuse if not satisfied with the particulars or other information.
- After all above formalities are complied with and approved by Ministry, LLP Agreement is to be submitted within 30 days of incorporation using E- form 3
- Once Registration Certificate is issued, information of conversion is to be intimated to concerned Registrar of Companies with which it was registered under the provisions of Companies Act 2013 within 15 days of such conversion using E-form 14.
Should You Really Go for Conversion?
In case you are a small entrepreneur and want your business to be internally driven, LLP is the best option to run your business. But the company surely provides much better opportunities for large business as evolved laws are there for bringing capital and diluting or liquidating stakes.
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