Change in LLP Act and MCA Technical Issues

1. Filing of LLP Form No. 3 is not compulsory, if no agreement is executed:

Section 23(1) of The Limited Liability Partnership (LLP) Act, 2008 mandates LLP and its partners to be governed by LLP Agreement.

Section 23(2) of the LLP Act, 2008 mandates LLP to file agreement and changes, if any, made therein to file with the ROC in a manner as may be prescribed

Section 23(4) of the LLP Act, 2008 mandates such governance of LLP Agreement as per First Schedule in case of absence of Agreement as to any matter, First Schedule covers almost all the matters of LLP.

Based upon plain reading of the Act, as per section 23(1) it seems that LLP Partnership Agreement is mandatory for LLP, however execution of the same is not mandatory as per section 23(2) as it mandates to file with ROC only when executed and changed, besides in case of absence of agreement as to any matter, section 23(4) directs to refer First Schedule for the same as such an absence can be for any or all matters.

Where as Rule 21 (1) of LLP Rules, 2009 mandates every LLP to file agreement & changes in Form No. 3 pursuant to section 23(2) of the LLP Act, 2008, here LLP Rules override the provisions of the Act, as Act mandates to file agreement only if made or executed whereas Rules mandates all LLP to file same, besides Rules completely ignored provisions of section 23(4) of the LLP Act, 2008.

2. Filing of LLP Form No. 8 & 11 is not permitted due to non filing of Form No. 3:

LLP Form No. 8 is towards filing of Statement of Account and Form No. 11 is towards filing of Annual Returns, both the forms are annual forms of the LLP which made compulsory to be filed on MCA website within stipulated time as prescribed and due to its importance, filing of Form No. 8 and 11 on MCA web portal is basic right for all LLP which have been restricted by MCA due to non-filing of Form No. 3.

Non-filing of Form No. 3 seems completely different matter altogether which should not be linked with Form 8 & 11.

3. Striking off Name of LLP is not permitted due to non-filing of Form No. 3:

Striking off Name of LLP with the Registrar in LLP Form No. 24 is also not permitted due to non filing of Form No. 3, 8 and 11.

Non-filing of Form No. 3, 8 and 11 is completely different matter altogether which can not be linked with Form No. 24, besides Ministry is expected to give easy exit route to LLP in the same way it gives to Company.

4. Payment of Additional Fee:

As per section 69 of the LLP Act, 2008, payment of additional fee is Rs. 100/- per day in case of delay in filing of any form within stipulated time as prescribed.

Every LLP are forced to file Form No. 3 within 30 days of its formation and failing which may attract additional fees, as I narrated earlier that it is not compulsory to file LLP Form No. 3 if no agreement is executed, besides additional fees of LLP Form No. 8 and 11 is also heavy if both the annual forms are not filed within prescribed time limit.

Daily additional charge of Rs. 100/- is so high as it is not affordable for all LLP, due to which, many LLP(s) became defunct as they can neither regularize their LLP nor can strike its name from the Register.

Hence, I also expect ministry to revise the act and put maximum cap on additional fees.

5. Technical Issues in Form MGT: 7 (Annual Return):

Earlier in Companies Act, it was mandatory to file Compliance Certificate in Form No. 66 with the Registrar of Companies, the same is linked with Annual Return in Companies Act, 2013 and authorize practicing company secretaries to mandatorily to sign and certify the forms of the Companies other than OPC and small companies.

That mandatory signature as prescribed in section 192 of the Companies Act, 2013 is linked with mandatory digital signature in Form No. MGT-7 but that compulsion as prescribed in the Act is not working in Form MGT-7 due to technical issues and Form MGT-7 can also be filed without the signature of company secretaries.

Certain technical issues seems of temporary nature as MCA may be in transition phase, however these issues gives major threat to violation of section 192 of the Companies Act, 2013.

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CS Vishal Mehta 
on 17 February 2017
Published in LAW
Views : 752
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