1. COMPANY FORMATION AND CONVERSION Basic understanding Possibilities Options By B C Shetty & Co. Chartered Accountants

2. Basic Understanding Company Partnership firm Limited liability partnership 3. Company A private limited or Public limited company Company registered under Companies Act 1956 Either Limited by guarantee Limited by shares Separation of ownership from the management Management will declare operations to the owners on annual basis Management and owners are bound by the articles and memorandum ofcompany Company is bound to pay income tax either on straight basis or MAT (minimum alternative tax) Profit declarations are once again subject to the dividend distribution tax inthe hands of the company Further whole of the profit cannot be withdrawn. 4. Partnership under partnership act 1932 Registered under the act partnership act 1932 Registration is not compulsory Unlimited liability of partners Owners are the managing partners unless otherwise as stated in the deed Partners are eligible for remuneration and interest subject to the terms ofdeed Business profits can be withdrawn which are tax exempted 5. Limited liability partnership LLP is an alternative corporate business form that gives the benefits of limited liability of a company and the flexibility of a partnership. The LLP can continue its existence irrespective of changes in partners. It is capable of entering into contracts and holding property in its own name. The LLP is a separate legal entity, is liable to the full extent of its assets but liability of the partners is limited to their agreed contribution in the LLP. Further, no partner is liable on account of the independent or unauthorized actions of other partners, thus individual partners are shielded from joint liability created by another partners wrongful business decisions or misconduct. Mutual rights and duties of the partners within a LLP are governed by an agreement between the partners or between the partners and the LLP as the case may be. The LLP, however, is not relieved of the liability for its other obligations as a separate entity. Partners are eligible to withdraw the remuneration, interest and profit subject to the agreement The profit of the LLP is taxable either on straight basis or at MAT rate. 6. Difference between company and firm The major difference between companies and partnerships may be considered under the following headings : Formation: A company is created by registration under the CompaniesAct. A partnership is created by agreement which may be express or implied from the conduct of the partners and is subject to the Indian Contract Act and the Indian Partnership Act. No special form is required , though partnerships articles are usually written Status At Law: A company is an artificial legal person with perpetualsuccession. Thus a company may purchase property , make contracts and sue and be sued. It is an entity distinct from its members. A partnership is not a legal though it may sue and be sued in the firms name. Thus the partners own the property of the firm and are liable for the contracts of the firm jointly as well as severally. 7. Difference between company and firm Transfer Of Shares: Shares in a company are freely transferable unless the companysconstitution otherwise provides; restrictions may , of course , appear in the articles of a private company. A partner can transfer his shares in the firm , but the assignee does not thereby become a partner and is merely entitled to the assigning partners share of the profits. Number Of Members: A private company must have at least two members and maximum 50members. A partnership cannot consist of more than 20 persons (10 persons in case of banking business). 8. Difference between company and firm Management: Members of a company are not entitled to take part in the management ofthe company unless they become directors. Partners are entitled to share in the management of the firm unless the articles provide otherwise. Agency: A member of a company is not an agent of the company or that of othermembers , and he cannot bind a company by his acts. Each partner is an agent of the firm and his partners, and nay bind the firm by his acts. 9. Difference between company and firm Liability Of Members: The liability of a member of a company may be limited by shares or byguarantee. The liability of a partner is unlimited. Powers: The affairs of accompany are closely controlled by the Companies Act, 1956and the company can only operate within the objects laid down in the memorandum of association, though these can be altered to some extent by special resolution. Partners may carry on any business as they please so long as it is not illegal and make whatever arrangements they wish with regard to the running of the firm from time to time. 10. Difference between company and firm Last but not least: Termination: No one member of a company can wind up the company, and the death,bankruptcy or insanity of a member does not mean that the company must be wound up. A partnership may be dissolved by any partner at any time unless the partnership is entered into for a fixed period of time. A partnership is also dissolved by the death or bankruptcy of a partner. 11. Difference between LLP & traditional partnership firm Under traditional partnership firm, every partner is liable, jointly with all theother partners and also severally for all acts of the firm done while he is a partner. Under LLP structure, liability of the partner is limited to his agreedcontribution. Further, no partner is liable on account of the independent or un-authorized acts of other partners, thus allowing individual partners to be shielded from joint liability created by another partners wrongful acts or misconduct. 12. Difference between LLP & a Company A basic difference between an LLP and a joint stock company lies in thatthe internal governance structure of a company is regulated by statute (i.e. Companies Act, 1956) whereas for an LLP it would be by a contractual agreement between partners. The management-ownership divide inherent in a company is not there in alimited liability partnership. LLP will have more flexibility as compared to a company. LLP will have lesser compliance requirements as compared to a company 13. Possibilities Start a Private Limited Company afresh and takeover the existing firm Start a Limited Liability Partnership afresh and takeover the existing firm Convert the firm to Limited Liability Partnership Convert the firm to private limited company 14. Start a Private Limited Company afresh and takeover the existing firm Under this method : PVT LTD Company will be afresh Fresh shareholders Fresh management team Takeover the existing firm Consequences: The valuation of firm has to be carried out separately The newly formed company has to pay the consideration Attracts capital gain tax Dissolution of firm has to be separately carried out Business is considered to be stated afresh though there is purchase ofexisting firm 15. Start a Limited Liability Partnership afresh and takeover the existing firm Under this method : LLP will be registered afresh Fresh partners and designated partner Fresh management team Takeover the existing firm Consequences: The valuation of firm has to be carried out separately The newly formed company has to pay the consideration Attracts capital gain tax Dissolution of firm has to be separately carried out Businessis considered to be stated afresh though there is purchase of existing firm 16. Convert the firm to Limited Liability Partnership Under this method : LLP will be registered afresh Existing firms partners Fresh management team With object of takeover and convert the existing firm A deed will be formulated and form part of the agreement and registration Consequences: The valuation of firm has to be carried out separately either at the book value or market value The newly formed company has to pay the consideration only to the extent of shares/ capital outstanding Does not Attracts capital gain tax, provided the > 50% of proportion of voting right is maintained by existing partner/shareholders during next five years Dissolution of firm will be carried out simultaneously Business is considered to be converted with new legal entity with the base of existing Firm 17. Convert the firm to private limited company Under this method : Private limited will be registered afresh With Existing firms partners as shareholders And Fresh management team With object of takeover and convert the existing firm A deed will be formulated and form part of the memorandum and registration Consequences: The valuation of firm has to be carried out separately either at the book value or market value The newly formed company has to pay the consideration in the form of shares Does not Attracts capital gain tax , provided the > 50% of proportion of voting right is maintained by existing partner/shareholders during next five years Dissolution of firm will be carried out simultaneously Business is considered to be converted with new legal entity with the base of existing firm. 18. Options Takeover by company or LLP Cash flow to partners as consideration Attracts capital gain tax to firm Business in deemed to be suspended and started afresh Conversion to company or LLP ZERO cash flow to partners Consideration in form of shares Does not attract the capital gain tax subject to conditions Restriction of profit withdrawal and tax on dividend Existing Partners have work as directors for salary instead of remunerationas in firm/ LLP 19. Options Convert the existing firm into private limited company Or Amend the existing partnership deed and then convert into the Privatelimited company 20. Amend the existing partnership deed and then convert into the Private limited company Consequences: Amendment has to be intimated to the registrar of firms and other statutory authorities like VAT & CST Professional tax Income tax assessing Officer etc The incoming partner has to bring the capital to the extent of share in the capital of new company Two separate books has to be prepared Two separate assessment of Income tax will happen Deed of conversion has to be made upon the amendment of firm with consent all partners Upon conversion and formation of company Pvt Ltd Company will be formed with base of deed of conversion Pvt ltd company will take over the firm Existing partners will become share holders in the ratio of their capital Business will be continued by the Pvt Ltd company All statutory registration- PAN , TAN, TIN/VAT, PT , S&E etc has to be afresh. Directors will get the salary only Shareholders will get the profit declared as dividend subject to dividend distribution tax Separate Income tax assessment for shareholders and company 21. Convert the existing firm into private limited company Consequences: Only one assessment of income tax for firm First shareholders are the existing partners Business will be transferred to new entity Upon conversion and formation of company Pvt Ltd Company will be formed with base of deed of conversion of existingpartners Pvt ltd company will take over the firm Existing partners will become share holders in the ratio of their capital ISSUE the shares subsequently to the new members and make then as managing director The voting rights of first shareholders has to be maintained atmore that 50% in next five years All statutory registration- PAN , TAN, TIN/VAT, PT , S&E etc has to be afresh. Directors will get the salary only Shareholders will get the profit declared as dividend subject to dividenddistribution tax Separate Income tax assessment for shareholders and company 22. Requirement for formation & Conversion of Company Step 1 Hold a meeting of the partners to transact the following business Assent of majority of its members as are present in person or where proxies are allowed, by proxy, at a general meeting summoned for the purpose of registering the firm under Part IX of the Companies Act, 1956. Since the liability of the members of the firm is unlimited, when a firm desires to register itself as a company under Part IX as a limited company, the majority required to assent as aforesaid shall consist of not less than of the members as are present in person or where proxies are allowed, by proxy, at a general meeting summoned for the purpose. To authorize one or more partners to take all steps necessary and to execute all papers, deeds, documents etc. pursuant to registration of the firm as a Company. To execute a supplementary Partnership Deed to align it with the requirements as under: There must be at least 2 partners in the partnership firm; The firm may be registered with the Registrar of Firms; There must be a fixed capital divided into units ; There must be provision of converting a firm into company. There must be an agreement by the partners to convert the partnership to a company. This can be done by a contract in writing to this effect to which the partners resolution for conversion can be attached as annexure. Execute a settlement deed. 23. Requirement for formation & Conversion of Company contd.. Step 2APPLICATION FOR DIRECTORS IDENTIFICATION NUMBER AND DIGITAL SIGNATURERS CERTIFICATEMinistry of Company Affairs has made Directors Identification Number mandatory for each Director. Following details are required for DIN: Name(s) , Fathers Name(s), Permanent Residential Address(s), Present Residential Address(s), Occupation, Name of the Companies in which the promoter is Director/Promoter, Date of Birth , E-mail IDs (Minimum 2 for private company).Ministry of Company affairs have initiated the process of E-filing of the Documents, wherein the either of the Director needs to have Digital Signature Certificate. For the matter of Convenience in submission of documents with Registrar of Companies and expediting the processing, it is advisable to obtain the Digital Signature Certificate from prescribed authorities.Following documents are required for DIN/Digital Signature: Copy of Passport/ Voter ID/Ration Card/Driving License/ PAN Card/Telephone Bill/Electricity Bill/Bank Statement.The application is required to be signed by the promoter(s).Normally the process takes 2 working days after submitting the documents with DIN Cell. 24. Requirement for formation & Conversion of Company contd.. Step 4Registration of Company On obtaining the approval of name , file the following documents with the registrar of Companies within 60 days from the date of name approval Two sets of Memorandum and Articles of Association of the Company. One set shall be duly stamped. A memorandum of association and articles of association may be made for the company which will be similar in all respects to a normal Memorandum and Articles of Association except that it incorporate therein terms of settlement deed. After drafting The Memorandum and Articles of Association is required to be stamped as per the Indian Stamp Act. (in Delhi its Rs. 200/- on MOA & 0.15% of Authorized Capital on AOA). Thereafter these documents are required to be executed by the promoters in their own hand in the presence of professionals after the date of Stamping of Memorandum & Article of Association in duplicate stating their full name, fathers name, residential address, occupation, number of shares subscribed for & Signature etc. Declaration by two partners verifying the particulars set forth in the above mentioned documents. Consent letters from Directors Filing fees as may be applicable Other information to be submitted as may be specified 25. Requirement for formation & Conversion of Company contd.. Once the new company is formed, the takeover agreement would be enteredbetween the Partnership Firm and the newly incorporated company. Convene a Board Meeting after giving notice to all the directors of the newlyincorporated company immediately after incorporation as per section 286 of the Companies Act, 1956 to adopt the agreement entered into by the company and the partner of the firm for the acquisition of business of the firm. In such a situation, the entire business of the firm along with all its assets andliabilities is transferred to the company. The company may issue shares or other securities to the Partner of the firm. Upon the conversion and formation, convey board meeting to take effect of allconversion and vesting of property and liability. 26. For B C Shetty & Co Thank you