Beruflich Dokumente
Kultur Dokumente
Formations
Limited Liability
Private Limited
Partnership Partnership
Company
(LLP)
Introduction
The foremost decision that one has to make before starting any business, is the form of business structure that will be the most suitable for the proposed business and its
owners.
The most common forms of business structures are namely the private companies, Limited Liability Partnerships and partnership firms (unlimited).
This document might help to a great extent, in solving the above confusion while selecting the most suitable business form as all the major pros and cons of each form of
business structure is given below.
However, before starting off with the pros and cons, let us get acquainted a bit with the basic information about them.
Private Limited Company
This is the most commonly known business form with quite a lot of pros alongwith some cons which will be discussed a little later. Here are a few of its basic information:
• This form of business structure is registered under the Companies Act, 2013.
• It is a separate legal entity.
• Name of the company has to have ‘Private Limited’ as suffix.
• Created by law.
Limited Liability Partnership (LLP)
This is a relatively new form of business structure.
• This form of business structure is registered under the Registrar of LLP under the control of the Ministry of Companies Affairs (MCA)
• It is governed by the Limited Liability Partnership Act, 2008 and the Rules made thereunder.
• It is a separate legal entity.
• Name of the business will have ‘LLP’ as suffix.
• Created by law.
Partnership
• This form of business is governed by the Indian Partnership Act, 1932 and various Rules made thereunder.
• Registration is optional.
• It is not a separate legal entity.
• Created by contract.
Advantages & Disadvantages of various forms of business
Incorporation related requirements
Minimum Capital No minimum capital requirement for starting a No minimum capital requirement for starting No minimum capital requirement for starting a
Requirement private limited company as per the Companies a LLP. partnership firm.
(Amendment) Act, 2015, which has omitted the
words “of one lakh rupees or such higher paid‐
up share capital”.
Director Each director is required to have a Director Each Designated Partner is required to have a
The partners are not required to obtain any
Identification Identification Number (DIN) before being DIN before being appointed as Designated
identification number.
Number (DIN) appointed as Director of any company. Partner of any LLP.
The following eforms alongwith the The following eforms are required to be filed No formality is required for an unregistered
Memorandum & Articles of Association are with Registrar of LLP alongwith prescribed partnership firm.
required to be filed with the Registrar of fees for incorporation.
Companies with prescribed fees for However, it is to be noted that the Registrar In case of registered partnership, Partnership Deed
incorporation: of LLP is also under the control of the along with form / affidavit, is required to be filled
Ministry of Corporate Affairs (MCA). Hence, with Registrar of firms along with requisite filing fee.
i. Dir‐3 – Application for allotment of DIN all the eforms are required to be filed at the
ii. INC‐1 – Application for reservation of name MCA21 portal, similar to company.
iii. INC‐7 – Application for Incorporation of
Company. i. Form 1 – Application for reservation of
iv. INC‐22 – Notice of situation or change of name.
Formalities of situation of registered office. ii. Form 2 – Incorporation document and
Incorporation v. DIR‐12 – Particulars of appointment of subscriber’s statement.
Directors and the Key Management Personnel iii. Form 2A – Details in respect of
and the changes among them. designated partners and partners of Limited
Liability Partnership.
However, in order to simplify and fast track the
procedure for company registration in India, the
Ministry of Corporate Affairs (MCA) has
introduced 'Simplified Proforma for
Incorporating Company Electronically (SPICe).
Memorandum of Association (MOA) and Articles LLP Agreement is the charter which denotes Partnership Deed is the charter of the firm which
Charter Document of Association (AOA) are the charter of the scope of operation and rights & duties of denotes its scope of operation and rights and duties of
company that defines its scope of operation. partners vis‐ LLP. the partners.
The Companies (Amendment) Act, 2015, has
Common Seal made the requirement for Common seal It is not mandatory to have a common seal. There is no concept of common seal in partnership.
optional.
Advantages & Disadvantages of various forms of business
Admission, cessation of members, partners and existence of the business form
Perpetual It has perpetual succession and members may It has perpetual succession partners may It does not have perpetual succession as this depends
Succession come and go. come and go. upon the will of partners.
Admission as A person can become member by buying shares A person can be admitted as a partner as per A person can be admitted as a partner as per the
partner / member of a company. the LLP Agreement. Partnership Agreement.
Ownership of assets, liability and rights/duties/obligation of Directors/Managing Partners/Partners
The company, independent of its members, has The LLP, independent of its partners, has Partners have joint ownership of all the assets
Ownership of assets
ownership of assets. ownership of assets. belonging to the partnership firm.
Rights / Duties /
Rights / Duties / obligation of the directors are
obligation of the Rights / Duties / obligation of partners are Rights / Duties / obligation of the partners are
governed by AOA and resolution passed by
Partners / Managing governed by the Agreement. governed by Partnership Deed.
shareholders or directors.
Partners / Directors
Principal / Agent The directors act as agents of the company and Partners act as agents of LLP, not of the
Partners are agents of the firm and other partners.
Relationship not of the members. partners.
Voting rights are decided as per the number of Voting rights may be as decided as per the
Voting Rights It depends upon the agreement.
shares held by the members. terms of Agreement.
Limited, to the extent of contribution made Unlimited. Partners are severally and jointly liable for
Liability of members Generally limited to the amount required to be
except in case of intentional fraud. Not liable actions of other partners and the firm and liability
/ partners paid up on each share.
for acts of other partners. extend to their personal assets as well.
Share Certificates are proof of ownership held The ownership of the partners in firm is The ownership of the partners in the firm is
Share Certificate
by the members of the Company. evident by LLP Agreement. evidenced by the Partnership Deed, if any.
Tax liability
‐ Status Domestic Company Partnership Firm Partnership Firm
subject to marginal relief.
‐ Minimum Companies are liable to pay Minimum Alternate
Alternate Tax Tax (MAT) @ 18.5% plus 3% cess and surcharge Not Applicable Not Applicable
(MAT) as applicable.
LLPs are liable to pay Alternate Minimum Tax LLPs are liable to pay Alternate Minimum Tax (AMT)
‐ Alternate
(AMT) @ 18.5% plus cess and surcharge as @ 18.5% plus cess and surcharge as applicable, on
Minimum Tax Not Applicable
applicable, on their adjusted total income their adjusted total income (equivalent to adjusted
(AMT)
(equivalent to adjusted taxable income). taxable income).
‐ Dividend
Companies are liable to pay Dividend
Distribution Not Applicable Not Applicable
Distribution Tax (DDT)
Tax (DDT)
‐ Presumptive
Not Eligible Not Eligible Eligible for certain businesses.
Taxation
Income tax treatment of a company converted
‐ Capital gain on into LLP is more or less tax neutral provided Conversion of LLP into a private limited No capital gain on conversion of partnership firms
conversion conditions specified in section 47(xiiib) are company is currently not possible in India. into LLP, if prescribed conditions are complied with.
satisfied.
‐ Remuneration
Remuneration to directors will be taxed as Remuneration to partners will be taxed as Remuneration to partners will be taxed as “Income
to Directors /
'Income from salary'. “Income from Business & Profession”. from Business & Profession”.
partners
Advantages & Disadvantages of various forms of business
Transferability of ownership and rights
A member can freely transfer his interest. A partner transfer his interest subject to the
Transferability of A partner can transfer his interest subject to
However, the transfer of shares is attracted to be Agreement. Since the interest is considered
Interest & its tax the Partnership Agreement. Further, if it is considered
taxed under "Income from other sources" if the as a capital asset, hence, any gain on transfer
implication as capital asset, then it is taxable under capital gains.
price is not at Fair Market value (FMV) is taxable.
In case of death of a partner, the legal heirs In case of death of a partner, the legal heirs have the
Transfer of shares /
In case of death of member, shares are have the to get the refund of the capital right to get the refund of the capital contribution +
Partnership rights
transmitted to the legal heirs. contribution + share in accumulated profits, share in accumulated profits, if any. Legal heirs will
in case of death
if Legal heirs will become partner. not become partners.
Legal proceedings and Dissolution
A company is a legal entity which can sue and be A LLP is a legal entity which can sue be sued Only registered partnership can sue and be sued upon
Legal Proceedings
sued upon. upon. by third party.
By agreement, mutual consent, insolvency, certain
Dissolution Voluntary or by order of Tribunal. Voluntary or by order of Tribunal.
contingencies, and by court order.
Compliances to various laws & regulations
Annual Return Annual Return No such Annual return is required to be filed.
All companies, according to the requirements of All LLPs have to file an Annual Return in
the Companies Act, 2013 and the rules made Form 11 to the Registrar within 60 days
thereunder, have to file an Annual Return in from the end of the financial year, i.e., within
Form MGT 7 to the Registrar of Companies at 30th May.
the MCA21 portal, within 60 days from the date
of AGM or from the end of the due date within
which the AGM should had been held.
‐ Annual
Compliances (filing)
All companies, have to file their Annual Accounts All LLPs have to file their Annual Accounts in
to the Registrar in Form AOC 4, within 30 days Form 8, within 30th October, to the
from the date of AGM or from the end of the due Registrar.
date within which the AGM should had been
held.
Advantages & Disadvantages of various forms of business
Annual General Meeting No formal requirement to hold any Annual There is no provision in regard to holding of any
Every company has to hold its first Annual General Meeting. meeting.
General Meeting (AGM) within 9 months from
the date of closing of the first financial year of
the company and in any other case, within a
period of 6 months from the date of closing of
the financial year. Further, not more than 15
‐ Statutory months shall elapse between the date of one
Meetings AGM to that of the next.
‐ Maintenance of
Required to maintain books of account, Required to maintain books of account as per
Statutory Required to maintain books of accounts as Tax laws
statutory registers, minutes, etc. LLP Act.
Records
‐ Cash or
Mercantile Only Mercantile basis of book keeping is Can be either Cash or Mercantile basis of
Can be either Cash or Mercantile basis of accounting.
basis of book allowed. accounting.
keeping
‐ Applicability of
Companies have to mandatorily comply with Accounting standards shall not be applicable
Accounting No Accounting Standards are applicable.
accounting standards. to LLPs.
Standards.
Advantages & Disadvantages of various forms of business
Credit Worthiness of organization
Will have a comparatively higher
Due to Stringent Compliances & disclosures
Credit Worthiness of creditworthines from Partnership due to Creditworthiness of firm depends upon goodwill
under various laws, Companies enjoys high
organization Stringent regulatory framework but lesser and creditworthiness of its partners
degree of credit worthiness.
than company.
‐ External
Commercial
Can avail ECB for specific end uses. Cannot avail ECB. Cannot avail ECB.
Borrowing
(ECB)
Outbound Investment / Direct Investment (ODI)
Foreign Participation and Foreign Direct Investment (FDI)
Investments can be made by non‐residents in Foreign investment in LLP is permitted under A Non‐Resident Indian (NRI) or a Person of Indian
the equity shares/fully, compulsorily and the automatic route if the LLP is engaged in Origin (PIO) resident outside India can invest in the
mandatorily convertible debentures/fully, sector where 100% FDI is allowed and there capital of a firm or a proprietary concern in India on
compulsorily and mandatorily convertible are no attendant FDI linked performance non‐repatriation basis provided certain conditions
preference shares of an Indian company, conditionalities to the sector. are fulfilled.
through the Automatic Route or the Government
Foreign Direct Route. Under the Automatic Route, the non‐
Investment (FDI) resident investor or the Indian company does
not require any approval from Government of
India for the investment. Under the Government
Route, prior approval of the Government of
India is required