IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 Limited Liability Partnership in India: Study of Different Aspects for Optimum Growth Dr. Radheyshyam Sharma Bhamini Garg Department of Commerce Satyawati College, University of Delhi Delhi, India Department of Commerce Satyawati College, University of Delhi Delhi, India Abstract- Limited Liability Partnership entities, the world wide recognized form of business organization has been introduced in India by way of Limited Liability Partnership Act, 2008. A hybrid model of business that embraces to cover the flexibility of partnership along with the advantages of the limited liability of a company at a low compliance cost. Such Limited Liability Partnerships are intended to be created for the purpose of supporting the small scale industries and service sector enterprises. The paper attempts to introduce to the concept of Limited Liability Partnerships in India along with the need of setting up the Limited Liability Partnerships in place of partnerships and limited companies. The paper covers various taxation aspects in view of Limited Liability Partnerships that covers Income Tax, Wealth Tax, Service Tax and Sales Tax/Value Added Tax. The paper also attempts to highlight the issues pertaining to them that need to be addressed in order to effectively implement the Limited Liability Partnerships in India. The researcher also took note of various Possible Business Structures in Limited Liability Partnerships along with few suggestions. The paper concluded that in near future, more Limited Liability Partnerships will come into existence given its advantages over the partnership and company form of organization in India. Keywords- LLP, Liability, Business, Taxation. I. INTRODUCTION Partnerships has been one of the most oldest forms of business relationships and this can be evidenced that in terms of complex business, partnerships have been replaced by limited liability companies concept, but it is still a preferred form for small trading and business enterprises, especially for the professionals worldwide. But gradually, this form has lost its demand because of inherent demerits in it, the primarily being the unlimited liability of partners. So, a need was felt to develop a format that would combine the flexibility of partnership and the advantages of limited liability of a limited liability company at a low compliance cost. With respect to India, Limited Liability Partnership (LLP) entities have been introduced in India by way of LLP Act, 2008 that was notified with effect from March 2009. The importance of the subject of LLP has been growing since then day by day with the upward moving trend in LLP registrations and conversion of traditional unlimited partnerships to the LLP status. One can experience the increasing level of interest in recent years in the formation of LLP. So, LLP is a hybrid model of business organization in India that combines the positive aspects of both the company and the partnership. As the name suggests, it pervades the benefits of Limited Liability and allows its members the flexibility of organizing their internal structure as a partnership based on mutual agreement. LLP is managed as per the LLP Agreement, however in the absence of such agreement the LLP would be governed by the framework provided in Schedule 1 of LLP Act, 2008 which describes the matters relating to mutual rights and duties of partners of the LLP and of the LLP and its partners. Many smaller professional firms are taking the interest in such concept as they are attracted by the lower compliance cost, better control and management, greater flexibility in operations and limited liability of members of the LLP. In an LLP, one partner is not responsible or liable for another partner's misconduct or negligence; this is an important difference from that of an unlimited partnership. In an LLP, all partners have a form of limited liability for each individual's protection within the partnership, similar to that of the shareholders of a corporation. However, unlike corporate shareholders, the partners have the right to manage the business directly. An LLP also limits the personal liability of a partner for the errors, omissions, incompetence, or negligence of the LLP's employees or other agents. This form would be quite useful for small and medium enterprises in general and for the enterprises in services sector in particular, including professionals and knowledge based enterprises. One of the major advantages of the LLP is that it enables the professional/technical expertise and initiative to combine with financial risk taking capacity in an innovative and efficient manner. LLP’s formed and registered under the LLP Act, 2008 shall have the features of Perpetual Succession, Power to sue and get sued, Capacity to buy and sell security in its own name and Common Seal. 720 IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 II. LITERATURE REVIEW Prashant critically analysed that the Naresh Chandra Committee Report (2003) on “Regulation of Small Companies and Partnership” dealt with reforms in Company Act and Indian Partnership Act. The recommendation of this Committee for LLP in India is a step further to modernization and recognizing the needs of changing times [1]. Sharma (2006) put forth that The Dr. J.J. Irani Committee Report on Company Law (2005), while recommending the formation of LLPs, pleaded very strongly for the enactment of a separate legislation to meet the challenges posed by International competition [2]. Batra (2007) further analysed that The Naresh Chandra Committee recommended its application to the service industry while the Irani Committee extended its application to the small enterprises also [3]. Viswanathan (2006) argued that the proposed LLP Bill was drafted on the lines of the United Kingdom's Limited Liability Partnerships Act 2000. She also pointed out that the concept paper on LLP in 2005 had also invited positive response from research scholars [4]. Srinivasan (2007) criticized by saying the LLP Bill is no more than a hotchpotch of existing statutes as in culinary recipe. It may satisfy the tastes of some consumers but whether it is healthy is open to question. Whatever it is, it is not novel. We are reminded of the old joke of a scientist’s friends who glued together the dismembered parts of different species of insects and asked him to indicate the taxonomy of the new type of ‘bug’ they had created. His bland reply was that it was a ‘humbug’ [5]. Bhasker (2007) pointed out certain points of weaknesses while doing the critical analysis of LLP Bill that there is no collective responsibility for every action of LLP, lack of ceiling on number of partners may make LLPs unmanageable, Fines/Penalties/Prosecution and imprisonment provided for in the Act may prove a major irritant for forming LLPs etc [6]. Morgan (1998) argued that in certain academic circles concerns have been voiced that the limited liability concept in case of legal professionals is contrary to their ethical duties towards the clients as it restricts their liability towards clients in advance and works upon the fear of malpractice. Referring to the B. Chandrasekhar Committee on Venture Capital, he pointed out that it has urged in its report for introduction of LLPs for promotion of venture capital industry in India as they provide the necessary flexibility in risk-sharing, compensation arrangements amongst investors and tax pass through [7]. Sen & Mathen (2011) considered LLP to be a convenient hybrid between a partnership and company, the Indian limited liability partnership is a business association that merges certain advantages of a partnership with those of a company. Their paper traces the evolution of this business vehicle from its genesis in the American state of Texas to the form in which it has been adopted in India [8]. M. Sachdeva, M. & Sachdeva, S. (2009) analysed that LLP is a hybrid business form that coalesces the separate legal existence and limited liability attributes of a company and the organizational suppleness of a general partnership. They also pointed out to the fact that the Indian LLP Act is based on the LLP legislations in the UK and Singapore [9]. Rickett & Grantham (2008) argued that there is an extensive academic literature on the economic rationale for separate legal personality and limited liability. In brief, the doctrines of legal personality and limited liability are practically important because they enable to collect the capital for a business venture from a number of investors, over time, while avoiding costs of transfer of the venture’s assets when new participants are admitted, or existing participants depart; reduce the costs of transfer of the business venture (or interests in it)- instead of needing to transfer all the different assets of the business venture, all that need be transferred is the shares; and enable the business venture to be conducted on a standard from limited recourse basis [10]. Henning (2004) observed that the formation of companies with limited liability led to introduction of “limited liability” concept in partnership law. A limited partnership (LP) consists of one or more general partners liable for all the debts and obligations of the firm and who alone are entitled to manage the firm's affairs, and one of more limited partners whose liability for the debts and obligations of the firm is limited in amount but who are excluded from all management functions. He also puts forth that the concept of LLP initially emerged in US and UK. With the growing litigation against the law firms and accounting firms in those jurisdictions, the need arose for a device to limit the liability of partners in such firms, especially in cases, where professionals including lawyers and accountants were being exposed to large amounts of money in liability. Thus, the concept of LLPs was developed with a view to providing a suitable business vehicle for professionals like lawyers and accountants [11]. John, W. & John, M. (2001), analysed that “The Law of Limited Liability Partnerships" is a comprehensive guide to the law relating to this particular type of corporate vehicle, which combines a degree of protection from personal liability with the traditional flexibility of a partnership [12]. Geoffrey, Devis et al (2011) with its indepth analysis and commentary from leading academics and professionals in the fields of insolvency, accountancy and company law, provided a one-stop reference on this relatively new legal entity [13]. Robert, W. (2003) argued that the very vagueness and uncertainty of the liability piercing doctrine encourages adequate capitalization and the purchase of liability insurance by corporations [14]. Milman (2000) observed that some amount of cynicism still remains about the working of the LLP system and certain scholars have vehemently criticized their economic viability and the introduced structure based on the low take up rates for LLPs in UK [15]. Hence, Sheikh (1997) instead of going by the fact that even scholarly opinion to the contrary has been expressed that there is a need to make a careful beginning instead of rushing through the introduction of the Act. All the aspects have to be well thought out and regulations have to be made for different aspects beforehand in order to assess their relevance in making LLP an effective commercial entity [16]. III. OBJECTIVES OF THE STUDY The study focuses on giving an overview on the LLPs and their need with respect to India. 721 IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 It also focuses on the very important aspect that is Taxation of LLPs. What all issues that LLPs goes through are all discussed in the paper and moreover it also discusses about the Possible Business Models under LLP and some suggestions for effective implementation of LLP. IV. RESEARCH METHODOLOGY The study is descriptive in nature. The study is based on secondary sources of data that has been obtained from various published sources, websites, and books, articles, journals and company database. V. NEED FOR LLPs IN INDIA The two primary reasons for introducing LLP were the Risk Factor and the enhanced global competitive advantage to the Indian professionals. In the event of business failure, the liability would be limited to the partner responsible. There would be no recourse to attach the personal assets of the other members. This lowers the risk factor associated with unlimited liability in a partnership and introduced the limited liability concept of company law to make such bodies more adaptive to international competition. In the years to come, it may be possible that the various useful services will be provided by a large pool of Indian professionals to the International clientele. But, in an increasingly litigious environment, it is really very risky to be a member of partnership firm with unlimited liability. So, a need was felt that there should be a new corporate entity as an alternative to the traditional partnership with limited liability and flexible business environment to operate efficiently to give competition to the International market. Many professionals in India, such as advocates/lawyers, chartered accountants and doctors are precluded from practicing through companies. The LLP structure would be particularly advantageous for providing such professional services in the era of satisfying the global customers with utmost sincerity. Hence it would be a suitable vehicle for partnership among professionals who are already regulated such as company Secretaries, Chartered Accountants, Cost Accountants, Lawyers, and Architects, Engineers and Doctors etc., particularly accountants and auditors who are not legally permitted to operate as company. Further, as India is attracting FDI in entrepreneurial projects carried through the LLP format, the same would encourage the small entrepreneurs in India to explore business ventures with foreign investment. Also, foreign entities having project offices in India consider reducing risk by using the LLP structure. Any structure where different members want to control different segments and also bear full responsibility for their acts could conveniently use the LLP structure that includes infrastructure project SPVs where different partners bring in different expertise into the project. The disadvantages of the traditional form of business organization as that of traditional partnership firms and limited companies make it a dire necessity to have a hybrid model of LLP. Some of the major disadvantages of traditional partnership firm are as follows: • Unlimited Liability of partners – This has proved to be an unattractive prospect as this is not only too risky but at time not feasible. It does not recognize the distinction between partnership and its members. • Limited membership- In a general Partnership firm registered under Indian Partnership Act cannot be formed with more than 20 partners preventing the growth of professional firms to large entities. This can have a depressing effect on the developmental aspects of the firm as ideally firm need to grow continuously to satisfy its clientele. This restriction would not apply if the partnership is registered as LLP. Some of the major disadvantages of limited companies are as follows: • Statute governed structure of the company - The internal governance of a company is regulated by Companies Act, 1956 whereas for a LLP it would be by a contractual agreement between partners. There will flexibility of a partnership in LLP while allowing the owners to adopt any form of internal organization, and limitation to the owner’s liability. • The Dichotomy of Management-Ownership - There is no dichotomy of management-ownership in LLP as prevalent in a company. There are lesser requirements for compliance in LLP which makes it more flexible. While, relatively major advantages of LLP are: • Separate Legal Entity – Right to sue and right hold property in its own name. • Flexibility - It is not required to maintain statutory records except the Books of Accounts. • No requirement of minimum capital contribution. • Its dissolution or winding-up is rather easy. • The LLP is also free from complicated procedures applicable to companies, such as minutes, annual meetings, etc. • The partners have a right to directly manage the business of the LLP, unlike a company where the business must be managed through the directors. • Perpetual Existence - There is no perpetual existence in case of the general partnership. • No limit on maximum number of partners. VI. TAXATION ASPECTS OF LLP’s ¾ Income Tax • Definition of ‘firm’, ‘partner’ and ‘partnership’ amended to include LLP & its partners. LLP will be treated as Partnership Firm for the purposes of Income Tax. Consequently, all provisions applicable to firm apply to LLP. • Residential Status of an LLP - LLP is a resident of India except where control and management situated wholly outside India. 722 IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 • Treated as opaque entity - Rate similar to that of partnership firm @ 30.90%. • Profits exempt in the hands of partners – Section 10(2A) of the Income-Tax Act, 1961 (IT Act). • No Minimum Alternate Tax payable. • No Dividend Distribution Tax (DDT) payable. • No surcharge applicable. • LLP is also subject to Alternate Minimum Tax (AMT), calculated based on the adjusted total income. • Remuneration to partners will be treated as “Income from Business & Profession” and the LLP is allowed to get deduction of remuneration paid to the partners subject to maximum of the limit under section- 40(b). Currently, there are no tax implications on conversion of a partnership firm to an LLP as for the tax purposes; LLP and a general partnership firm is considered as equivalent. Conversion endorses the premise that conversion does not involve any transfer but a mere internal organization taking place. ¾ Wealth Tax LLP not included in any definition in Wealth tax Act. Hence, LLP not covered under persons liable to pay wealth tax. ¾ Service Tax For the purposes of Service Tax also, an LLP will be treated as partnership firm only. Service Tax Rules, 1994 has been amended by the Service Tax (Amendment) Rules, 2012 to consider LLP as a partnership firm. ¾ Sales Tax/Vat Under Sales Tax, LLP is treated as a body corporate. The definition of the dealer under the Central Sales Tax, 1956 includes body corporate also. There is no dissimilarity in partnership firm, company, body corporate etc. Under sales tax. Provisions for different kinds of dealers are distinguished based on the volume/size or turnover of the dealer and not on the status of the dealer. ¾ ¾ VII. ISSUES SURROUNDING LLP No pass through Mechanism: The provisions as regards LLP do not treat LLP as a transparent entity but treat them at par with the partnership format. Accordingly, the profits and losses of the LLP would not pass through in the hands of partners but would be assessable in the hands of LLP. This implies that an LLP, like a partnership firm, will pay tax on its profits after deduction of business expenditure, salaries and interest paid to partners. Partners will then be taxed on their salary and interest receipts, whereas share in profits is exempt. Exemption in case of share of profits of the partners However, only if amount considered in “total income” of LLP. So, now further issue arises that if income not taxed in the hands of LLP, whether amount exempt in hands of shareholders: -Argument of Section 10(2A) of IT Act being merely clarificatory in nature vis-à-vis income stream from LLP, as in case of income from partnership - Malabar Fisheries vs. CIT [(120 ITR 49)(SC)] ¾ ¾ ¾ ¾ ¾ ¾ -Arguably amount not taxable, since LLP treated on par with partnership. -However, unlike partnership, LLP is a distinct legal entity, separate from its partners – any impact on taxability?? Arguably, Partnership taxation principles should apply; whether different legal status of LLP v/s. Partnership Firm impacts taxability is a big question. Double Taxation: The tax treatment as per the provisions laid, caused some unrest to potential foreign investors who would now be exposed to double taxation in respect of income arising from an LLP incorporated in India since profits would be liable to tax in the hands of the LLP in India and when the profits are distributed to the partners, such profits would be liable to tax in the respective jurisdiction where the partner is resident. This situation is not even addressed by the double taxation avoidance agreements entered into by India with other countries. Partners would, therefore, be unable to benefit from taxstructuring of profit distribution. However, there are still some tax advantages like LLP would not be liable to Dividend Distribution Tax and Minimum Alternate Tax. LLP, which is a hybrid structure between a company and a firm, could have been more attractive mode of investment if a pass through status was accorded to it for tax purposes. Unlimited Liability in Taxation: Income Tax Act makes every partner of a LLP jointly and severally liable for the taxes to be paid by the LLP for the period during which he was a partner, unless the non-recovery of taxes cannot be attributed to gross neglect, misfeasance or breach of duty on his part. The aforesaid is irrespective of any contrary provision in the LLP Act. Although this section appears to be in conflict with the scheme of the LLP Act, which does not make the partners personally liable for the liabilities of the firm, it seems to be in line with existing provisions of section 179 of the IT Act, which cast a similar liability on the Directors of a private company in liquidation. Conversion of Company into LLP: One key condition for the conversion of a company (Private or unlisted Public) to an LLP is that the company may convert into an LLP provided there is no security interest subsisting on its assets or in force at the time of application. It is difficult for most companies to be in a scenario where there is no security interest subsisting on any assets. Conversion of firm to LLP: LLP & general partnership to be treated as equivalent. No tax implications if rights & obligations remain the same after conversion and no transfer of any asset / liability after conversion. However, no specific tax treatment provided in IT Act. No Conversion Back: While you can convert from a firm or a company to an LLP, there are no provisions for erring and deciding to reconvert back into a partnership or a company. LLPs executing Infrastructure projects or IT related business are otherwise eligible for exemption under 723 IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 section 80IAwill be badly hit by the applicability of AMT, as till now they were exempt from payment of MAT but they will have to shell out AMT from their pockets. Introduction of AMT in Union Budget of 2011-12 dented the attractiveness of LLP to a large extend. Scenario 4 – Listed companies with projects VIII. WAY AHEAD Possible Business Structures in LLP ¾ Scenario 1 – Foreign Company forming an LLP ¾ Scenario 2 – Consortiums / Joint ventures The big question that lies here is whether LLP would be suitable for such Business Structures. The answer would depend on meeting the following demands:-LLPs to be listed on stock exchange. -Certain legislations / policies that specifically require company structure to be met with. -In certain cases, fiscal incentives available only to companies. Hence, make them available so. • • • • ¾ Scenario 3 – Indian promoters • • IX. SUGGESTIONS Steps to be made to widen its scope beyond professionals and small scale businesses In order to keep a check on unlawfulness, the law may require the LLP to prepare the financial statements prepared as per the prescribed accounting standards. This will render them more accountable towards their duties. Proper systems to be set up to check that the partners must be licensed members of an approved profession before they can set up their own business as an LLP as it involves the concept of Liability Protection. Guidelines as regards LLP to obtain adequate liability insurance coverage for each of its partners and also to ensure LLP have adequate assets to satisfy potential claims. Appropriate safeguards in the legislation to be provided to maintain a balanced approach towards adoption of legal regime for LLPs. In the event of winding up, LLPs must make arrangements with one or more banks or insurance companies to pay a certain sum to the person responsible for winding up of LLP upon its dissolution, for the benefits of its creditors. X. CONCLUSION After globalization, Indian professionals are able to serve worldwide. They cannot serve in form of company because of professional restrictions and moreover they hesitate to form Partnerships due to number of reasons. In the wake of same, LLP would be a suitable vehicle for partnership among 724 IRACST – International Journal of Commerce, Business and Management (IJCBM), ISSN: 2319–2828 Vol. 3, No. 5, October 2014 professionals who are already regulated such as company secretaries, chartered accountants, cost accountants, lawyers, architects, engineers, doctors. So, we can say that LLP is a format that attempts to fill up the vacuum that existed between partnership law and company law. It is a marriage of principles of company law and partnership law in order to address the deficiencies in both the areas for small scale business and professional firms. LLP promises a rosy future in the future for the small scale industries and the professionals alike. Moreover, the possible Business Structures can convert into reality if the concerns that matters relating to the same are contained. LLPs can be seen as a corporate business vehicle that enables professional expertise and entrepreneurial initiative to combine and operate in flexible, innovative and efficient manner, providing benefits of limited liability while allowing its members the flexibility for organizing their internal structure as a partnership. This set up is useful for small and medium enterprises in general and for the enterprises in service sector. Hence, there is a large scope of LLPs in future given that the issues relating to them are timely and properly addressed to ensure their working the best possible and efficient manner. With its inherent flexible structure, it remains a viable form of business in the long run. REFERENCES [1] S.J., Prashant “Limited Liability Partnership in India – A critical analysis of the Naresh Chandra Committee Report on Regulation of Small Companies and Partnership” [2] Sharma, J.P. (2006), “Limited Liability Partnership Bill, 2006—some observations”, 78 CLA (Mag.) 10. [3] Batra, S. (2007), “LLP may be growth vehicle for entrepreneurs & professionals”, Economic Times, p. 16. [4] Viswanathan, A. (2006), “India Considers Introduction of Limited Liability Partnerships”, I.C.C. L.R., 17(5), p. 141142. [5] Srinivasan, K. (2007), “Warts noticeable on a closer look”, 76 CLA (Mag.) 19. [6] Bhasker, S. (2007), “LLPs- A SWOT Analysis”, Business Line, p. 110. [7] Morgan, D. (1998) “Conflicts of Interest and the New Forms of Professional Associations”, 39 S. TEX. L. REV. 215, 218. [8] Sen, N. & Mathen, N. (2011), “Decoding the New Business Vehicle of India: The Limited Liability partnership”, NUJS LAW REVIEW, 4 NJUS L. REV. 669. [9] Sachdeva, M. & Sachdeva, S. (2009),”The Indian LLP Law: Some Concerns for Lawyers and Chartered Accountants”, SEBI & Corporate Law, Vol. 92, No. 6, available at http://ssrn.com/abstract=1423766. [10] Rickett, C., Grantham, R. (2008) (eds), “Structure and Justification in Private Law: Essays for Peter Birks”, Hart Publishing, Oxford. [11] Henning, J.J. (2004), “Partnership Law Review: The Joint Consultation Papers and the Limited Liability Partnership Act in Brief Historical and Comparative Perspective”, Comp. Law., 25(6), p. 163-170. [12] John, W. and John, M. (2001), “Limited Liability Partnerships-Legislation Handbook”, 1st Edn., Jordan Publishing Limited, Bristol. [13] Geoffrey, Devis et al (2011), “Palmer’s Limited Liability Partnership Law”, 2nd Edn., Sweet and Maxwell, London. [14] Hamilton, W. & Macey, R. (2003), “Cases and Materials On Corporations Including Partnerships And Limited Liability Companies” 8th Edn., p. 355. [15] Milman, D. (2000), “Limited Liability Partnerships: The Waiting Goes On”, I.C.C. L.R., 11(10), p. 329-332. [16] Sheikh, S. (1997), “Limited Liability Partnerships: A New Trading Vehicle”, I.C.C.L.R., 8(8), p. 270-277. AUTHORS PROFILE 1. Dr. Radheyshyam Sharma Having 15 years of experience in academics. Has done M.Com, MBA, M.Phil. and Phd from MDU(Rohtak). Presently working as Assistant Professor in Satyawati College, Department of Commerce, University of Delhi, Delhi, India. Email: [email protected] 2. Bhamini Garg Has done B.Com(h) and M.Com from University of Delhi. Presently working as Assistant Professor in Satyawati College, Department of Commerce, University of Delhi, Delhi, India. Email:[email protected] 725
© Copyright 2026 Paperzz