CA Divyang Gupta
Article discusses Corporate Social Responsibility Applicability/ CSR Applicability, Mandatory Expenditure on CSR, Medium of Expenditure on CSR Activity , Activities for CSR Expenditure, Responsibility of Board of Directors related CSR Applicability, Clarification/Other provision w.r.t to expenditure on CSR and Income Tax Deductibility for CSR Expenses.
Corporate Social Responsibility
With the enactment of the Companies Act, 2013, India has become the forerunner to mandate spend on Corporate Social Responsibility (CSR) activities through a statutory provision.
While many corporate houses have been traditionally engaged in doing CSR activities voluntarily, the new CSR provisions put formal and greater responsibility on companies in India to set out clear framework and processes to ensure strict compliance. However, what the Companies Act does is bring more companies into the fold and increase the total CSR spend. In this Articles we discusses CSR Provisions and CSR Applicability for Corporates.
Corporate Social Responsibility Applicability/ CSR Applicability:
CSR is Applicable from 1st April 2014
Section 135(1) of Company Act 2013 mandates the CSR expenditure / CSR Applicability for the following companies– Every company having
a) net worth of Rs.500 crore,
b) turnover of Rs.1000 crore
c) or net profit of Rs.5.00 crore
Where net profit excludes income from overseas branch & divided distributed by company on which this section apply.
– If any company on which CSR provisions were applicable cease to come in above criteria for consecutive three years , they are not required to follow the provision of CSR
Mandatory Expenditure :
Section 135(5) mandates 2 percent of the Average net profit during the three immediately preceding financial years.
For Financial Year 2014-15 Calculation: Average net profit of FY 2011-12,2012-13 & 2013-14 needed to be considered.
Average Net Profit is calculated as per section 198 i.e. Calculation done for managerial calculation.
General query- Is admin expenditure & salary of dedicated CSR staff is to be included in CSR expenditure-
Clarification: Expenditure of the Company personnel/Agencies (Good track Record in 3 FY) & Administration overhead should not exceed 5 % of the Total CSR expenditure of the whole Financial Year
Medium of Expenditure on CSR Activity
1) Through Trust or Society may not be not established by company ,Holding or subsidiary company having good track record in last three years in undertaking the similar activities
Activities for CSR Expenditure:
Schedule VII mandates expenditure for the following activity-
1) Eradicating hunger, poverty and malnutrition, promoting preventive health care and sanitation and making available safe drinking water,
2) Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly, and the differently abled and livelihood enhancement projects,
3) Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, daycare centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward ,
4) ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agro forestry, conservation of natural resources and maintaining quality of soil, air and water;
5) Protection of national heritage, art and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional art and handicrafts,
6) Measures for the benefit of armed forces veterans, war widows and their dependents;
7) training to promote rural sports, nationally recognised sports, paraolympic sports and Olympic sports;
8) Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central Government for socio-economic development and relief and welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women;
9) contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government,
10) Rural development projects,
11) Slum Area Development
Responsibility of Board of Directors
1) Board should take in account the recommendation of CSR committee & approve the CSR policy & also place it on company’s website. Ensure that the activities are carried out as per the policy
2) The Board report of the company must include the particulars specified in page 9 of the following link-
Clarification/Other provision w.r.t to expenditure
1) Company must form CSR committee which will formulate and recommend to board the activities to be carried out & amount of expenditure to be incurred from time to time & monitor the CSR Policy.
Composition of CSR Committee
|Type of Company||Composition|
|Listed||Three or More Director including at least one Independent Director|
|Unlisted & Private||Three or more director , Independent director is mandatory required to be appointed.|
|Private having two Director||Two Director|
|Foreign||At least two person, one which must be company’s representative in india|
2) Expenditure only on the employees of the company & their families will not form part of CSR activity .It means CSR can be incurred on the employee but not fully only part of the whole
3) It must be expended in India. Preference must be given to the local area in which the company
4) Any surplus arise of the CSR project will not form part of the Business income.
Income Tax Deductibility
As per the notified rules, it has been clarified CSR spends excludes “activities undertaken in pursuance of the normal course of business of the company”. If expenditure on CSR is not one contemplated under Section 37 of the I-T Act—which provides for allowance of any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out exclusively for the purposes of the business or profession—we have tax issues emerging. The dilemma is if any expenditure on CSR is considered by the taxman as not expended wholly or exclusively for the purposes of the business, on the backdrop that the CSR rules excludes “activities undertaken in pursuance of the normal course of business of the company”, will this contribution be considered as permissible CSR spending. From a technical perspective, there is good ground to suggest that the required-to-spend amount is perceived by the legislature to be mandatory in nature..
Therefore if we go through the recent finance act 2014 along with the above said explanation , some changes in the regime is required as it will lead to disallowance of the CSR expenditure.
(Author may be contacted at firstname.lastname@example.org)