Procedure for Appointment of Designated Partner in LLP

Offering the benefits of limited liability, normally enjoyed by corporations, the Limited Liability Partnership is a modern kind of business arrangement combining the adaptability provided by a basic partnership with the flexibility of a Separate entity. From the partners, the LLP is a unique legal entity able to hold property, execute contracts, sue, and be sued in its own name. With a share of the profits in a matter governed by the LLP agreement, the partners of an LLP are people/entities who provide capital, talents, or services. Compared to other business structures, the Limited Liability Partnership is appealing and a secure sort of business because, unlike in conventional partnerships, the liability of the members of an LLP is confined to the agreed contributions.

Who is a Designated Partner in an LLP?

Designated Partner plays a vital role in ensuring that the Limited Liability Partnership (LLP) is legally compliant. Even though the LLP structure gives limited liability, Designated Partners have extra responsibility as well as liability for ensuring that the entity is legally sound.

• The Designated Partner is specifically appointed under the Limited Liability Partnership Act, 2008, to look after the compliance with the law on the part of the LLP.
• Every LLP is supposed to have a minimum of two Designated Partners, who are to be natural persons.
• At least one Designated Partner has to be a resident of India, which means a minimum stay of at least 120 days in India within the previous financial year.
• A Designated Partner is necessary to acquire a Designated Partner Identification Number (DPIN). The appointment may be made either:

1. on the date of incorporation, or
2. later, as per the LLP agreement and/or a resolution passed by the partners.

Duties of the Designated Partner

Designated Partners are more accountable than other partners, with duties that include:

1. Statutory Compliance

• Supporting compliance with the provisions under the LLP Act and the Rules.
• Timely submission of statutory forms/returns to the Registrar of Companies (ROC).

2. Maintenance of records

• Satisfactory maintenance of accounting records and official documents.
• The preparation and submission of the Statement of Accounts and Solvency.

3. Disclosure and Reporting

• Disclosure of the financial position, changes in partners, and alterations in the LLP Agreement.
• Supporting transparency and accuracy in filings.

4. Regulatory Representation

• Acting as the signing authority before regulatory organizations.
• Handling notices, inquiries, and inspections from the ROC or other government agencies.

Liabilities of a Designated Partner

1. Penalty for Non-Compliance – Liable for a penalty in case of non-compliance with the legal requirements.
2. Personal Liability – Liable as an individual for crimes resulting from negligence, fraud, or intentional failure to perform.
3. Joint and Several Liability – He may jointly as well as severally be liable in case of compliance-related defaults.

Procedure for Appointment of Designated Partners in LLP

The appointment procedure under the Act is a critical requirement that helps in ensuring the validity of the application, besides ensuring that the LLP is not charged with any penalties.

1. Eligibility Criteria for Designated Partners

• This partner has to be a natural person (the Designated Partner cannot be a body corporate).
• Must be at least 18 years old.
• Should not be disqualified on the basis of the law.
• The candidate’s consent is a prerequisite.
• Foreign nationals are also eligible to be appointed, subject to the fulfilment of FEMA guidelines.

2. Getting a Digital Signature Certificate (DSC)

For a Digital Signature Certificate (DSC), the following is necessary:

• Proposed Designated Partners
• Existing Designated Partners submitting forms
• The DSC needs to be obtained from a Certifying Authority recognized by the government.

It is required for online submission of LLP forms on the MCA portal.

3. Getting a Designated Partner Identification Number (DPIN)

It is necessary to have a DPIN for a Designated Partner. The DPIN is currently issued by:

• Form FIlliP (for incorporation), or
• Form DIR-3 (for appointment in existing LLP)

The following are the required documents:

• PAN (for Indian Nationals)
• Passport (for foreigners)
• Proof of address
• Photo and email address

The DPIN is valid for a lifetime once it is assigned.

4. Authorisation by Existing Partners

The appointment of a Designated Partner is required to be:

• Pursuant to the LLP agreement, or
• Ratified by a resolution passed by existing partners.

If the agreement is silent, the consent of all partners is generally required. The resolution should empower:

• The Appointment of the Designated Partner
• Submission of necessary documents to the Registrar of Companies (ROC)

5. Consent of the Proposed Designated Partner

• The written consent of the nominee Designated Partner needs to be obtained.
• Desire and intention to be a Designated Partner
• Acceptance of Responsibilities under LLP Act
• It is a part of LLP records and supporting documents of statutory form.

6. Execution / Amendment of LLP Agreement

In the event that an appointment results in:

• The joining of a new Designated Partner, or
• Modification of rights and duties,

The LLP agreement has to be amended. The Supplementary LLP Agreement should be:

• Done on stamp paper, as per the State Stamp Act.
• All signed by partners.

The revised agreement should comprise:

• The name of the Designated Partner.
• Any capital contribution.
• Rights, obligations, and the split of profit.

7. Submission of Form 4 with Registrar of Companies (ROC)

Form 4 is to be filed for:

• The nomination of a Designated Partner.
• Any change in the name of a partner.

Time Limit: within 30 days of the appointment.

The essential details that are required:

• Appointment date
• Consent letter

The following are the required attachments:

• The consent of the Designated Partner.
• Resolution regarding the approval of the appointment.

8. Filing of Form 3 (If LLP Agreement is Amended)

Form 3 is to be filed for:

• Any changes to the LLP agreement.
• Time Limit: Not later than 30 days from the date of amendment.
• The Supplementary LLP Agreement is attached.
• Delay attracts additional fees.

9. Verification & Approval by ROC

The ROC will examine:

• The forms were submitted.
• The attached documents.

On verification success:

• The announcement will be recorded.
• The details will be updated on the MCA portal.
• Inconsistencies might call for resubmission or rejection.

10. Post-Appointment

• The LLP statutory register needs to be updated.
• Notify banks, tax departments, and other parties.
• Update PAN, GST, etc. registrations when required.
• It is essential that the duties of compliance are clearly articulated.

Consequences of Non-Compliance

Non-compliance with the regulations related to the appointment of Designated Partners leads to a serious jeopardy to the legal and compliance structure of an LLP. In such cases, the LLP and its partners remain in the purview of different consequences: penalties, personal liability, regulatory actions, and reputation loss. It is very important to ensure timely appointment and follow the compliances related to the same to maintain the lawful operation and continuity of the LLP.

1. Breach of Statutory Duty

• An LLP is obliged to always have at least two Designated Partners as its members.
• At least one of these Designated Partners shall be a resident of India.
• Failure to do so states that it is a direct contravention of the LLP Act, 2008.

2. Imposition of Financial Penalties

• Both the LLP and its partners could face a fine in the case of default.
• The LLP Act has provided the amount of penalty for every day of continuing default, subject to a maximum limit.
• Further, the Designated Partners will also be liable for personal penalties for non-compliance.

3. Personal Responsibility of Partners

• If the LLP operates without the minimum number of Designated Partners:
• All parties can be liable for non-compliance.
• Personal liability may arise in respect to statutory defaults, filings, and disclosures.
• This jeopardises the limited liability privilege in cases of non-compliance.

4. Failure to file returns for a statutory audit.

Appointment of Designated Partners is crucial for:

• Filing Form 8 – Statement of Accounts and Solvency
• Filing Form 11 (Annual Return)
• Failure to appoint may result in:
• Failure to file or late filing of statutory forms
• Accrual of additional late fees and penalties

5. Invalidity of Acts and Decisions

All such acts which need the approval or certification from the Designated Partners:

• Have the validity challenged
• Engage in legal battles
• Contracts and filings that have taken place from that point on may fall under scrutiny.

6. Regulatory Action by Registrar of Companies (ROC)

ROC may issue

• Show-cause notices
• Orders directing rectification

If the default is continued, then it will invite adjudication proceedings under the LLP Act itself.

7. LLP Strike Off

Persistent non-compliance may be grounds for:

• ROC to initiate the strike-off proceedings
• LLP is being considered non-operational or non-compliant

This greatly impacts business continuity.

8. Impact on Credibility and Business Operations

Non-compliance will adversely affect:

• LLP’s reputation
• Investors’, lenders’, and clients’ confidence
• Applications or approvals by banks and authorities may not be processed.

Conclusion

From a compliance perspective, Designated Partners help to guarantee the seamless operation of a Limited Liability Partnership. Designated Partners, as the representatives of the LLP, are tasked with ensuring that the LLP abides by the rules under the LLP Act of 2008. From a legal standpoint, they work to guarantee openness, responsibility, and discipline brought into the institutional structure. The Designated Partner’s role is not limited to that of a nominee, as these partners shield the LLP from penalties, obligations, and shutdowns.