IRACST International Journal of Commerce, Business and Management (IJCBM), ISSN: 23192828

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complex business, partnerships have been replaced by limited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.
LLPs 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.

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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 scientists
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 ventures 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.

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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
owners 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 LLPs
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.

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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.
Wealth Tax
LLP not included in any definition in Wealth tax Act. Hence,
LLP not covered under persons liable to pay wealth tax.
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.
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.

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--vis income stream from LLP,
as in case of income from partnership - Malabar Fisheries
vs. CIT [(120 ITR 49)(SC)]

-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

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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
Scenario 1 Foreign Company forming an LLP

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.

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

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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.
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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: radhey.570@rediffmail.com
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:bhamini039@gmail.com

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