All you need to know about De-criminalisation of Compoundable Offences under LLP

By Taxscan Team - On February 3, 2021 9:37 pm

The Union Budget 2021 has proposed a couple of changes to Limited Liability Partnerships (LLPs).

With the object of unleashing the entrepreneurial spirits of our youth and to remove the fear of criminal prosecutions for non- substantive minor and procedural omissions and commissions in the normal course of their business transactions, the Government of India in the Ministry of Corporate Affairs (MCA) decided to initiate the process of decriminalization of compoundable offences under the limited liability partnership (LLP) Act, 2008, for greater ease of doing business for law abiding LLPs.

The Government treats Honest and Ethical Corporate entrepreneurs as wealth creators and nation builders. The objective of the De-criminalization exercise is to remove criminality of offences from business laws where no malafide intentions are involved. In furtherance of the said objective, an exercise was undertaken to identify those provisions of the Limited Liability Partnership Act, violations of which do not result in injury to public interest but are presently criminal in nature with fine as well as punishment after conviction being provided for in the Act.

Principles adopted for Decriminalization of Compoundable Offences:

Principle 1: Offences that relate to minor/ less serious compliance issues, involving predominantly objective determinations, are proposed to be shifted to the In-house Adjudication Mechanism (IAM) framework instead of being treated as criminal offences.

Principle 2: Offences that are more appropriate to be dealt with under other laws, are proposed to be omitted from the LLP Act, 2008.

Principle 3: For non-Compoundable offences that are very serious violations entailing an element of fraud, intent to deceive and caused injury to public interest or non- compliance of order of statutory authorities impinging on effective regulation, Status Quo would be maintained.

In all, twelve (12) offences are proposed to be decriminalized and one (1) provision (Section 73) entailing criminal liability is proposed to be omitted. The 12 de-criminalized offences would then get shifted to IAM thereby de-clogging the criminal courts from routine cases.

In addition to the De-criminalization of the Act the Government also proposes Introduction of certain new concepts into the Act for greater Ease of Doing Business:

Small LLP: It is proposed to create a class of LLP called as “Small LLP” in line with the concept of Small Companies. Such Small LLPs would be subject to lesser compliances, lesser fee or additional fee and lesser penalties in the event of default. Thus, lower cost of compliance would incentivize unincorporated micro and small partnerships to convert into the organized structure of an LLP and derive its benefits.

Non-convertible Debentures (NCDs): It is proposed to allow LLPs to raise capital through issue of fully secured Non-Convertible Debentures (NCDs) (as an alternative to equity participation) from investors who are regulated by SEBI or RBI. This will help deepen the Debt Market and enhance the capitalization of LLPs.

Reduction of Additional Fee: It is also proposed to amend Section 69 of the Act with a view to reduce the additional fee of Rs. 100 per day which is presently applicable for the delayed filing of forms, documents. A reduced additional fee is expected to incentivize smooth filing of records and returns of LLPs and consequently result in an updated registry for proper regulation and policy making.

The second proposal is to exclude LLPs from presumptive taxation. The financial bill states, “Clause 12 of the Bill seeks to amend section 44ADA of the Income-tax Act relating to special provision for computing profits and gains of profession on a presumptive basis.” Section 44ADA is a special provision for calculating the profits and gains of small professionals in certain circumstances. Section 44ADA was introduced to extend the scheme of simplified presumptive taxation to specified professionals.

Earlier, the presumptive scheme of tax was applicable only for small businesses. The presumptive scheme of taxation reduces the compliance burden on small professions and facilitates ease of doing business. Under the presumptive scheme of taxation, profits are presumed at 50% of the gross receipts. By following Section 44ADA, an assessee would get the benefits of not needing to maintain books required under Section 44AA and not require having accounts audited under Section 44AB.