CS Divesh Goyal
Background: Before enactment of Companies Act, 2013 Corporate Social Responsibility (CSR) expenditure is at the discretion of the corporate however after enactment of Section 135 of CSR Companies Act 2013 such expenditure is made mandatory for certain corporate (Criteria given below).
Corporate Social Responsibility (CSR) has been in existence for a long time and is almost as old as civilization. It is based on the Gandhian Principle of “trusteeship concept” whereby business houses are looked upon as trustees of the resources they draw from society and thus are expected to return them back manifold.
CSR is extremely important for sustainable development of all stakeholders (all the people, on whom the business has an impact, including the society at large).
Company is a social institution having duties and responsibilities towards the community in which if functions. Its objective is to bring about maximization of social welfare and common good.
India is the only country so far, where CSR has been made mandatory.
B. Applicability to which CSR provisions applicable:
A. Following below mention companies are required to constitute CSR Committee, If Company having following during Immediate Preceding financial year
Provisions of CSR apply to foreign branch/project office of foreign company:-
The Provisions of CSR are applicable to Foreign Company having Branch office or project in India if it fulfil the above given criteria. The criteria of Net Profit etc. apply only to business operations in India in case of foreign Company/ Project Office.
♦ When companies get ceases to comply with the provisions of CSR?
Every company which ceases to be a company covered above three conditions for Immediate preceding financial years shall not be required to:
a) Constitute a CSR Committee; and
b) Comply with the provisions contained in sub-sections (2) to (5) of the said section (to spent amount on CSR Activities).
Once company again fall within the limit provisions of CSR will be applicable on Company.
C. CSR Committee
◊ Constitutions of CSR Committee: Company to which CSR is mandatory should constitute a CSR Committee to undertake and monitor CSR activities:
The CSR Committee shall consist of 3 (Three) or more Director, out of which at least one director shall be an Independent Director.
√ Need not have Independent director on the CSR Committee
√ Can have CSR committee with only Two Directors.
◊ CSR Committee Meeting:
◊ Role/ Functions of CSR Committee:
D. Role/ Responsibility of Board of Direcotrs:
E. Net Profit Require spending on CSR Activity:
To ensure that at least 2% of average net profit of 3 immediately preceding financial years to be spent on CSR activities every year. Exp. For Financial Year 2017-18 Calculation: Average net profit of FY 2012-15, 2015-16 & 2016-17 needed to be considered.
“Net profit” means the net profit of a company as per its financial statement prepared in accordance with the applicable provisions of the Act, but shall not include the following, namely:
i. any profit arising from any overseas branch or branches of the company, whether operated as a separate company or otherwise; and
ii. Any dividend received from other companies in India, which are covered under and complying with provisions of Section 135.
Most Imp: average net profit is calculated as per section 198 i.e. calculation done for managerial calculation. (example of calculation as per section- 198 given below)
Net Profit for Foreign Company: In case of a foreign company covered under these rules, net profit means the net profit of such company as per profit and loss account prepared in terms of clause (a) of sub-section (1) of section 381 read with section 198 of the Act.
Whether the average net profit criteria in section 135(5) is Net profit before tax or Net profit after tax?
The explanation to section 135(5) states that “average net profit” shall be calculated in accordance with section 198 of the Companies Act, 2013. In terms of section 198(5)(a) in making computation of net profits, income-tax and super-tax payable by the company under the Income-tax Act, 1961 shall not be deducted. Therefore, the net profit criterion in section 135(5) is NET PROFIT BEFORE TAX.
F. CSR ACTIVITIES INCLUDES:
Preferable Location for spent of Amount:
♦ If expenditure done by Foreign Holding Company?( Refer Circular 21/2014 dated 18 June 2014)
Expenditure incurred by Foreign Holding Company for CSR activities in India will qualify as CSR spend of the Indian subsidiary if, the CSR expenditures are routed through Indian subsidiaries and if the Indian subsidiary is required to do so as per section 135 of the Act.
♦ If Registration of Trust is not mandatory in any state?
‘Registered Trust’ (as referred in Rule 4(2) of the Companies CSR Rules, 2014) would include Trusts registered under Income Tax Act 1956, for those States where registration of Trust is not mandatory.
♦ Whether a Company can spent through any other Entity:
Contribution to Corpus of a Trust/ Society/ section 8 Companies etc. will qualify as CSR expenditure until unless:
(a) the Trust/ society / Section 8 company etc. is created exclusively for undertaking CSR activities and [established by the company, either singly or along with its holding or subsidiary or associate company, or along with any other company, or holding or subsidiary or associate company of such other company, or otherwise]
(b) If not if such trust, society or company is [not established by the company, either singly or along with its holding or subsidiary or associate company, or along with any other company, or holding or subsidiary or associate company of such other company] shall have an established track record of three years in undertaking similar programs or projects;
(c) the company has specified the project or programs to be undertaken through these entities, the modalities of utilization of funds on such projects and programs and the monitoring and reporting mechanism
(d) Where the corpus is created exclusively for a purpose directly relatable to a subject covered in Schedule VII of the Act.
♦ Whether company can collaborate with another company for CSR activity and project?
A company may also collaborate with other companies for undertaking projects or programs or CSR activities in such a manner that the CSR committees of respective companies are in a position to report separately on such projects or programs.
♦ Building CSR Capacity:
Company may build CSR capacity of their own personnel as well as those of their implementing agencies through institutions with established track record of three years are permissible. However, such expenditure shall not be more than 5% of total CSR expenditure of company in one financial year.
G. Activity Doesn’t Inclue in CSR:
H. CSR Policy & Expenditure
‘CSR Policy” relates to the activities to be undertaken by the company as specified in Schedule VII to the Act and the expenditure thereon, excluding activities undertaken in pursuance of normal course of business of a company. The CSR Policy of the company shall, inter-alia, include the following, namely: – As per Rule4, following points must be considered while drafting the CSR Policy:
As per Rule 6, following shall be included in CSR Policy:
♦ SCHEDULE VII MANDATES EXPENDITURE FOR THE FOLLOWING ACTIVITY-
a. Eradicating hunger, poverty and malnutrition, promoting preventive health care and sanitation and making available safe drinking water,
b. Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly, and the differently abled and livelihood enhancement projects,
c. 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 ,
d. 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;
e. 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,
f. Measures for the benefit of armed forces veterans, war widows and their dependents;
g. 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;
h. contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government,
i. Rural development projects,
j. Slum Area Development
I. EFFECT OF NONE COMPLYING WITH CSR PROVISONS:
If a company fails to provide or spend such amount, the Board shall specify reasons for not spending the amount in its report.
As per FAQ of ICSI, on question of consequence for non-compliance of CSR provisions, the concept of CSR is based on the principle ‘comply or explain’. Section 135 of the Act does not lay down any penal provisions in case a company fails to spend the desired amount. However, sub-section 8 of section 134 provides that in case the company fails to spend such amount, the Board shall in its report specify the reasons for not spending the amount. In case the company does not disclose the reasons in the Board’s report, the company shall be punishable under section 134(8). This view of ICSI seems to be for the reason of provision of section 134(3) (o).]
Provision Added and Omitted:
Salaries paid by the companies to regular CSR staff as well as to volunteers of the companies (in proportion to company’s time/hours spent specifically on CSR) can be factored into CSR project cost as part of the CSR expenditure. [This para stands omitted as Rule 4(6) amended by notification dated 12.09.2014 – Refer Circular 36/2014 dated 17.09.2014.
Net worth meaning
As per Section 2(57), ‘NW’ = (Paid Up Share Capital + All Reserves Created Out of Profits + Securities Premium Account) – (Accumulated Losses + Deferred Expenditure and Miscellaneous Expenditure not Written Off).
|A.||To Whom CSR will applicable?|
|Every company having
during immediate preceding financial year
|B.||If the company has made profits in the years earlier to 2015-16, then is there need to comply with the provisions of Section 135 in financial year 2017-18?|
|if the company has made profits in the years earlier to 2015-16 but not in The years 2016-17, it need not comply with section 135.|
|C.||If section 135 applicable on any company for f.y. 2017-18, then what is the time period for investment on CSR activity?|
|Companies have to spend the amount on CSR activities as required by section 135 during the F.Y. 2017-18 and Reporting of the same would be in 2018 Board‘s Report or otherwise state the justification for the same in Board Report.|
|D.||Whether expenditure by Company for fulfillment of any Act/Statute of Regulations will be count as CSR expenditure?|
|No, Would not count as CSR expenditure.|
|E.||In case the company has appointed personnel exclusively for implementing the CSR activities of the company, can the expenditure incurred towards such personnel in terms of staff cost etc. be included in the expenditure earmarked for CSR activities?|
|Salary paid by the companies to regular CSR staff as well as to volunteers of the Companies (in proportion to company’s time/hours spent specifically on CSR) can be factored into CSR project cost as part of the CSR expenditure.|
|F.||Whether CSR applicable on private limited company also?|
If private Company fulfill the criteria given under section 135(1) then CSR will be applicable on that private limited company also.
|G.||As per Section Constitution of CSR committee required on Independent Director, whether this condition applicable on Private Company also.|
In case of Private Limited Company, CSR Committee may consist only two Board of Directors.
|H.||Whether CSR expenditure of a company can be claimed as a business expenditure?|
|The Finance Act, 2014 provides that any expenditure incurred by an assessed on the activities relating to corporate social responsibility referred to in section 135 of the Companies Act, 2013 shall not be deemed to be an expenditure incurred by the assessed for the purposes of the business or profession. Accordingly, the amount spent by a company towards CSR cannot be claimed as business expenditure.|
|I.||Whether the average net profit criteria in section 135(5) is Net profit before tax or Net profit after tax?|
|NET PROFIT BEFORE TAX
The explanation to section 135(5) states that “average net profit” shall be calculated in accordance with section 198 of the Companies Act, 2013. In terms of section 198(5) (a) in making computation of net profits, income-tax and super-tax payable by the company under the Income-tax Act, 1961 shall not be deducted. Therefore, the net profit criterion in section 135(5) is Net Profit Before Tax.
|J.||Can the CSR expenditure be spent on the activities beyond Schedule VII?|
|MCA vide General Circular No. 21/2014 dated June 18, 2014 has clarified that the
statutory provision and provisions of CSR Rules, 2014, is to ensure that while activities undertaken in pursuance of the CSR policy must be relatable to Schedule VII of the Companies Act 2013. However, the entries in the said Schedule VII must be interpreted liberally so as to capture the essence of the subjects enumerated in the said Schedule. The items enlisted in the Schedule VII of the Act, are broad-based and are intended to cover a wide range of activities.
|K.||Whether following activities would be qualified CSR Expenditure?|
|Event of Marathon : NO
Event of Award : NO
Event of Charitable Contribution : NO
Event of Advertisement : NO
Event of TV sponsorship programme : NO
|L.||Merely being a holding or subsidiary company of a company which falls under the criteria under section 135(1) make the company liable to comply with section 135, unless the company itself fulfils the criteria|
|No, It doesn’t make the company liable to comply with section 135, unless the company itself falls under the criteria.|
|M.||If section 8 company falls under the criteria of section 135(1) then, whether provisions of CSR are applicable on Section 8 Company?|
|There is no specific exemption given to section 8 companies with regard to applicability of section 135, hence section 8 companies are required to follow CSR provisions|
|N.||Can donation of money to a trust by a company be treated as CSR expenditure of the company?|
|The Ministry of Corporate Affairs has vide General Circular No. 21/2014 dated June 18, 2014 has clarified that Contribution to Corpus of a Trust/ Society/ Section 8 companies etc. will qualify as CSR expenditure as long as
(a) the Trust/ Society/ Section 8 company etc. is created exclusively for undertaking CSR activities or
(b) where the corpus is created exclusively for a purpose directly relatable to a subject covered in Schedule VII of the Act
|O.||In case of companies having multi-locational operations, which local area of operations should the company choose for spending the amount earmarked for CSR operations?|
|As per ICSI FAQ no. 44
Proviso to Section 135(5) of the Companies Act 2013 provides that a company shall give preference to the local area and the areas around it where it operates for Spending the amount earmarked for CSR activities. In case of multi-locational operations, the company could exercise discretion in choosing the area for which it wants to give preference.
|P.||If a company having turnover of more than Rs. 1000 crores or more has incurred loss in any of the preceding three financial years, then whether such company is required to comply with the provisions of the section 135 of the Companies Act, 2013?|
|As per the provisions of section 135 of the Act, one of the three criteria has to be satisfied to attract Section 135. Therefore, if a company satisfies the criterion of turnover, although it does not satisfy the criterion of net profit, it is required to comply with the provisions of Section 135 and the Companies (CSR Policy) Rules, 2014. But, since there are no profits, the company may not spend any amount but explain the reasons for not spending the amount in its Boards Report.|
|Q.||What is the treatment of expenses incurred beyond that of mandated CSR spend? or
There are instances of CSR activities that are in the project mode which require funds beyond that of the mandated 2%. Will such expense, where incurred, be counted in subsequent Financial years as part of CSR expenditure?
|As per ICSI FAQ- 54
In terms of section 135(5), the board of every company, to which section 135 is applicable, shall ensure that the company spends, in every financial year, at least 2% of the average net profits of the company made during the three preceding year.
There is no provision of spreading over the expenditure incurred in a particular year over the next few years. The words used here is at least. Therefore any Expenditure over 2% could be considered as voluntary higher spend. However, in
case, a company does not want to spend the 2% in the subsequent year on account of it having spent a higher amount in the previous year, the Board’s report may state so.
|R.||Whether it is mandatory to display CSR activity on website?|
|The Board of Directors of the company shall, after taking into account the recommendations of CSR Committee, approve the CSR Policy for the company and disclose contents of such policy in its report and the same shall be displayed on the company’s website, if any|
|S.||Whether reporting of CSR is mandatory in Board report?|
|The Board’s Report of a company covered under these rules pertaining to a financial year commencing on or after the 1st day of April, 2014 shall include an annual report on CSR containing particulars specified in Annexure.|
|T.||There is no need to prepare director report for Foreign company so whether it is mandatory for foreign Company also to give reporting of CSR activity?|
|In case of a foreign company, the balance sheet filed under sub-clause (b) of sub-section (1) of section 381 shall contain an Annexure regarding report on CSR.|
|U.||Whether profit arise from surplus of CSR activity form part of profit of the company|
The surplus arising out of the CSR projects or programs or activities shall not form part of the business profit of a company
|V.||Whether contribution to political party consider as CSR activity?|
Contribution of any amount directly or indirectly to any political party under section 182 of the Act, shall not be considered as CSR activity.
|W.||Whether CSR projects or programmes for employee of the Company and their family will form part of CSR activity?|
The CSR projects or programs or activities that benefit only the employees of the company and their Families shall not be considered as CSR activities in accordance with section 135 of the Act’
|X.||Whether CSR projects and programme undertake outside India consider as CSR activity?|
CSR projects and programme undertake in India only consider as CSR activity.
|Y.||Whether company can collaborate with another company for CSR activity and project?|
|A company may also collaborate with other companies for undertaking projects or
programs or CSR activities in such a manner that the CSR committees of respective companies are in a position to report separately on such projects or programs
|Z.||How to calculate net profit for the purpose of Section 135?|
|For the purposes of section 135 “average net profit” shall be calculated in accordance with the provisions of Section 198|
|AA.||What should be the compliance if company fails to spend such amount on corporate social responsibility?|
|if the company fails to spend such amount, the Board shall, in its report made under clause (o) of Sub-Section (3) of Section 134, specify the reasons for not spending the amount|
|BB.||Is CSR spending required to be done by the Company directly or such amounts can be contributed to charity/ NGO/ section 25 company. Will such contribution qualify as CSR spend?|
|Yes. Contribution by the Company to such trusts, NGOs etc also qualify for CSR spend if it meets the track record and other criteria as per Rule 4(2) of Companies (CSR Policy) Rules, 2014.|
|CC.||Treatment of shortage in CSR spend and disclosure and possibility of carry forward
of excess spending of CSR. Is there any need for creation of a provision in the event of a shortage in spending?
|Any shortfall in spending in CSR shall be explained in the financial statements and the Board of Directors shall state the amount unspent and reasons for not spending that amount. Any such shortfall is not required to be provided for in the books of accounts. However, if a company has already undertaken certain CSR activity for which a contractual liability has been incurred then, a provision for the requisite amount payable to record that liability needs to be recognized as per the applicable Accounting Standards.
Any amount excess spent (i.e., more than 2% as specified in Section 135) cannot be carried forward to the subsequent years. However, the company is entitled to disclose in their Annual Reports of subsequent years any such excess spending of
Previous years while giving reasons for not spending in those later years.
|DD.||Whether any dividend received from other companies in India will be include in Net Profit?|
|Any dividend received from other companies in India, which are covered under and complying with the provisions of section 135 of the Act as well as any dividend received from a company incorporated outside India shall also be excluded from the Net Profit|
|EE.||Whether resolution can be pass by Circulation resolution by CSR Committee?|
|Yes there is no restriction to pass resolution by circulation resolution by the committee. It can pass such resolution.|
 Net Profit for the CSR has been discussed at the end of the Article.
 Persons resident in India authorized to accept on behalf of the company service of process and any notices or other documents required to be served on the Company.
 Refer Circular 21/2014 dated 18 June 2014