Corporate Social Responsibility (CSR) in India

On 29th August 2013, The Companies Act 2013 replaced the Companies Act of 1956. Ministry of Corporate Affairs notified Section135 and Schedule VII came into effect from 1st April 2014.

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On 29th August 2013, The Companies Act 2013 replaced the Companies Act of 1956. The New Act has made far-reaching changes affecting company formation, administration and governance, and incorporates an additional section i.e. Section 135 – which lays down certain requirements, expected of companies, pertaining to the execution, fund allotment and reporting on CSR.One of the Act’s most startling changes has been compulsory corporate social responsibility obligations (“CSR”) upon Indian companies and foreign companies listed in India. These obligations mainly come in the form of mandatory amounts companies must contribute to remediating social problems.Ministry of Corporate Affairs notified Section135 and Schedule VII came into effect from 1st April 2014.
Entities Covered by the CSR Obligations – The Section 135 is applicable to companieswhich have an annual turnover of Rs.1,000 crore or more
or a net worth of Rs.500 crore or more
or a net profit of Rs.5 crore or more.Companies meeting the above criteria are required to constitute a CSR Committee consists of three directors and one director shall be an independent director. An unlisted public company or a private company covered under Section 135(1) of the Act, which is not required to appoint an independent director, shall have its CSR Committee without such director and a private company with two directors on Board should constitute its CSR Committee with only two directors.The CSR Committee shall institute a transparent monitoring mechanism for implementation of the CSR projects or programs or activities undertaken by the company. The companies falling under the prescribed criteria are required to spend a minimum 2% of its average net profit for its preceding three financial years amount on CSR activities and report on the activities detailed in Schedule VII, or prepare to explain why they didn’t.

Suggested Areas of Activities for companies to implement their CSR in PROJECT MODE are :

(as per Schedule VII)

i. Eradicating hunger, poverty and malnutrition, promoting health care, sanitation & safe drinking water
ii. Promotion of education, special education and vocational skills
iii. Reducing inequalities faced by socially and economically backwards
iv. Ensuring Environmental sustainability through Promotion of flora & fauna, animal welfare agro-forestry etc.
v. Protection of national heritage, art & culture , Promotion &development of traditional arts and handicrafts
vi. Measures for benefit of armed forces veterans, war widows and their dependents
vii. Training to support Sports
viii. Contribution to PM’s fund or any other fund set up by the Central Government or the State Governments for socio-economic development and relief and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women
ix. Contributions provided to technology incubators located within academic institutions which are provided by Central Government
x. Rural development projects
xi. Slum development
xii. As per subsequent notifications Swachh Bharat and Clean Ganga fund were also included as one of the CSR activities for CSR spend.

 

CSR Laws in India

S.No.

Reference

Date

Description

Web links

1 Notification 29.08.13 The COMPANIES ACT www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf
2 S.O.582(E) 27.02.2014 Notification relating to effective date of provisions of section 135 and Schedule VII of Companies Act, 2013 www.mca.gov.in/Ministry/pdf/CompaniesActNotification1_2014.pdf
3 G.S.R, 129(E) 27.02.2014 Notification relating to effective date of provisions of section 135 and Schedule VII of Companies Act, 2014 http://ghsa.in/wp-content/uploads/2014/02/CompaniesActNotification2_2014.pdf
4 G.S.R.130(E) 27.02.2014 Notification relating to amendments of Schedule VII of Companies Act, 2013 www.mca.gov.in/Ministry/pdf/CompaniesActNotification3_2014.pdf
5 G.S.R.261(E) 31.03.2014 Corrigenda to Notification no. GSR 130E dated 27.02.2014 regarding Schedule VII [w.r.t CSR Activities] www.mca.gov.in/Ministry/pdf/Notification_03April2014.pdf
6 General Circular No. 21/2014 18.06.2014 Clarifications with regard to provisions of Corporate Social Responsibility under section 135 www.mca.gov.in/Ministry/pdf/General_Circular_21_2014.pdf
8 G.S.R. 644€ 12.09.2014 Rules dated 12th Sept 2014: Companies (Corporate Social Responsibility Policy) Amendment Rules,2014 www.mca.gov.in/Ministry/pdf/NCA_Rules_12092014.pdf
9 General Circular No. 36/2014 17.09.2014 General Circular 36 dated 17 Sept 2014: Clarification with regard to provisions of CSR under section 135 www.mca.gov.in/Ministry/pdf/circular_36_17092014.pdf
10 G.S.R. 741(E) 24.10.2014 Notification dated: 24.10.2014 – Amendment in Schedule VII of the Companies Act, 2013 www.mca.gov.in/Ministry/pdf/Amendment_Notification_24102014.pdf
11 Notification 19.01.2015 The Companies (Corporate Social Responsibility Policy) Amendment Rules, 2015 www.mca.gov.in/Ministry/pdf/Amendment_Rules_2015_20012015.pdf
12 General Circular 01/2015: 03.02.2015  Constitution of a High Level Committee to suggest measures for improved monitoring of the implementation of CSR  policies by the companies under Section 135 of the Companies Act, 2013 www.mca.gov.in/Ministry/pdf/General_Circular_01_2015.pdf
13 Notification 28.02.15 General Budget 2015-16 by Finance Minister Shree Arun Jaithley ( Pib.nic.in pib.nic.in/budget2015/budgetdoc/gbEngRelease.pdf
14 Notification 15.05.2015 Eligible Donations to Swachh Bharat Kosh and Clean Ganga Fund to be 100% Deductible http://pib.nic.in/newsite/PrintRelease.aspx?relid=116180
15 Notification 12.01.16 Frequently Asked Questions (FAQs) with regard to Corporate Social Responsibility under section 135 of the Companies Act,2013 http://www.mca.gov.in/Ministry/pdf/FAQ_CSR.pdf

1.What is meaning of ‘any financial year’ mentioned in Section 135 (1) of the Companies Act, 2013?
“Any Financial year” referred under Sub- Section (1) of Section 135 of the Act read with Rule 3(2) of Companies CSR Rule, 2014 implies any of the three preceding financial years ( may refer General Circular No. 21/2014, dated: 18.06.2014).

2.Compliance under section 135 of the Act i.e. Corporate Social Responsibility, is applicable from which Financial Year?
The compliance of the provisions of CSR under the Companies Act, 2013 i.e. constitution of CSR Committee, formulation of CSR Policy, the spending of requisite amount on CSR activities came into force from April, 2014.

3.Whether expenditure by Companies on activities covered under Schedule VII for the fulfillment of any Act/Statute of Regulations will count as CSR expenditure?
This would not count as CSR expenditure. (may refer point no. (iii) of General Circular No. 21/2014, dated: 18.06.2014).

4. Can the expenditure incurred towards personnel exclusively appointed by the companies for implementing the CSR activities of the company, be included in the expenditure earmarked for CSR activities?
Salary paid by the companies to regular CSR staff as well as employees, who render their services for CSR will be part of Administrative overheads and should not exceed 5% of the total CSR expenditure as per rule 4(6) of CSR Policy, Rules 2014.

5.Whether CSR expenditure of a company can be claimed as a business expenditure?
The amount spent by a company towards CSR cannot be claimed as business expenditure. The Finance Act, 2014 provides that any expenditure incurred by an assessee 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 assessee for the purposes of the business or profession.

6. Whether the ‘average net profit’ criteria for section 135(5) is Net profit before tax or Net profit after tax?
Computation of net profit for section 135 is as per section 198 of the Companies Act, 2013 which primarily is NET PROFIT BEFORE TAX.

7. Can the CSR expenditure be spent on the activities beyond Schedule VII?
General Circular No. 21/2014 dated June18, 2014 of MCA 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.

8. What tax benefits can be availed under CSR?
No specific tax exemptions have been extended to CSR expenditure per se. Finance Act, 2014 also clarifies that expenditure on CSR does not form part of business expenditure. While no specific tax exemption has been extended to expenditure incurred on CSR, spending on several activities like contributions to Prime Minister’s Relief Fund, scientific research, rural development projects, skill development projects, agricultural extension projects, etc., which find place in Schedule VII, already enjoy exemptions under different sections of the Income Tax Act, 1961.

9.Which activities would not qualify as CSR Expenditure?

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. • One-off events such as marathons/ awards/ charitable contribution/ advertisement/sponsorships of TV programmes etc. would not be qualified as part of CSR expenditure. • Expenses incurred by companies for the fulfillment of any Act/ Statute of regulations (such as Labour Laws, Land Acquisition Act etc.) would not count as CSR expenditure under the Companies Act. • Contribution of any amount directly or indirectly to any political party shall not be considered as a CSR activity. Activities undertaken by the company in pursuance of its normal course of business.

10. Will being a holding or subsidiary company of a company which fulfils the criteria under section 135(1) make the company liable to comply with section 135, even if the company itself fulfills the criteria
Being a holding or subsidiary company of a company which fulfils the criteria under section 135(1) doesn’t make the company liable to comply with section 135, unless the company itself fulfills the criteria.

11.Whether provisions of CSR are applicable on Section 8 Company, if it fulfills the criteria of section 135(1) of the Act.
Section 135 of the Act reads “ Every company…….”, i.e 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.

12. Can donation of money to a trust by a company be treated as CSR expenditure of the company?
General Circular No. 21/2014 of MCA dated June 18, 2014 clarifies 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

13. There is no need to prepare director’s 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.

14.Whether contribution to political party is considered 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. (May refer Rule 4(7) of CSR Policy, Rules 2014).

15.Whether CSR projects or programs for employee of the Company and their family will form part of CSR activity?
NO, 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’. (May refer Rule 4(5) of CSR Policy, Rules 2014).

16. Whether CSR projects and programme undertaken outside India consider as CSR activity?
Any excess amount spent (i.e., more than 2% as specified in section 135) cannot be carried to the subsequent years and adjusted against the year’s CSR expenditure.

 17. Whether expenditure incurred on disaster relief qualifies for CSR or not?
Disaster relief can cover wide range of activities that can be appropriately shown under various items listed in Schedule VII. For example,
(i) medical aid can be covered under ‘promoting health care including preventive health care.’
(ii) food supply can be covered under eradicating hunger, poverty and malnutrition.
(iii) supply of clean water can be covered under ‘sanitation and making available safe drinking water’. (May refer to annexure to General Circular dated 18.06.2014

18. Whether contribution in kind is permissible as CSR or not?
Section 135 prescribes “….shall ensure that company spends….”.The company has to spend the amount.

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csrcfe@ficci.com

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