Corporate Social Responsibility is not a new concept in India, however, the Ministry of Corporate Affairs, Government of India has notified the Section 135 of the Companies Act, 2013 along with Companies (Corporate Social Responsibility Policy) Rules, 2014 "hereinafter CSR Rules" and other notifications related thereto which makes it mandatory (with effect from 1st April, 2014) for certain companies who fulfill the criteria as mentioned under Sub Section 1 of Section 135 to comply with the provisions relevant to Corporate Social Responsibility. As mentioned by United Nations Industrial Development Organization (UNIDO), CSR is generally understood as being the way through which a company achieves a balance of economic, environmental and social imperatives ("Triple- Bottom-Line- Approach"), while at the same time addressing the expectations of shareholders and stakeholders.
WHAT IS CSR?
The term "Corporate Social Responsibility (CSR)" can be referred as corporate initiative to assess and take responsibility for the company''''s effects on the environment and impact on social welfare. The term generally applies to companies efforts that go beyond what may be required by regulators or environmental protection groups. Corporate social responsibility may also be referred to as "corporate citizenship" and can involve incurring short-term costs that do not provide an immediate financial benefit to the company, but instead promote positive social and environmental change.
Moreover, while proposing the Corporate Social Responsibility Rules under Section 135 of the Companies Act, 2013, the Chairman of the CSR Committee mentioned the Guiding Principle as follows: "CSR is the process by which an organization thinks about and evolves its relationships with stakeholders for the common good, and demonstrates its commitment in this regard by adoption of appropriate business processes and strategies. Thus CSR is not charity or mere donations. CSR is a way of conducting business, by which corporate entities visibly contribute to the social good. Socially responsible companies do not limit themselves to using resources to engage in activities that increase only their profits. They use CSR to integrate economic, environmental and social objectives with the company''''''''''''''''''''''''''''''''s operations and growth."
As per Companies Act, 2013, CSR has become mandatory in India. The Ministry of Corporate Affairs (MCA) in exercise of its powers conferred by Section 1(3) of the Companies Act, 2013 (the Act) and vide notification dated 27th February 2014, notified 1st April 2014 as the date on which the provisions of Section 135 and Schedule VII of the Act shall come into force.
Section 135 read with Companies (CSR Policy) Rules, 2014
FOR WHOM IT IS APPLICABLE?
The companies on whom the provisions of the CSR shall be applicable are contained in Sub Section 1 of Section 135 of the Companies Act, 2013. As per the said section, the companies having:-
Net worth of INR 500 crore or more; or
Turnover of INR 1000 crore or more; or
Net Profit of INR 5 crore or more
During any financial year(Amendment proposed to “immediately preceding financial year” dated March, 2016) shall be required to constitute a Corporate Social Responsibility Committee of the Board "hereinafter CSR Committee" with effect from 1st April, 2014.
A company’s holding or subsidiary, which satisfies the above criteria, will also have to constitute CSR Committee.
Every Foreign Company having its branch office or project office in india satisfying the above criteria will have to constitute the Committee.
The criteria of Net Profit etc. apply only to business operations in India in case of foreign Company/ Project Office.
The Committee should institute a transparent monitoring mechanism for implementation of the programme.
Board report should disclose composition of CSR Committee.
The above provision requires every company having such prescribed Net worth or Turnover or Net Profit shall be covered within the ambit of CSR provisions. The section has used the word "companies" which connotes a wider meaning and shall include the foreign companies having branch or project offices in India.
Net Worth of Rs.500 Crore or More
Turnover of Rs.1000 Crore or More
Net Profit of Rs.5 Crore or More
Every Company which does not meet the above mentioned criteria for 3 consecutive financial years is not required to –
Constitute a CSR Committee; and
Comply with provisions of the Section 135 of the Act till such time it meets the criteria mentioned above.
Definition of Net Profit
For an Indian Company
Net profit as per the Financial Statements prepared under the Act or Companies Act, 2013 and it shall not include the following-
Any profit arising from any overseas branch or branches of the Company, whether operated as a separated company or otherwise; and
Any dividend received from other Companies in India which are covered under and complying with the provisions of Section 135 of the Act.
For Foreign Company
Net profit as per the Profit and Loss Account prepared in terms of Section 381(1) (a) read with Section 198 of the Companies Act, 2013.
Net Profit Require spending on CSR Activity:
To ensure that at least 2% of average net profit of 3 immediately preceding years is spent on CSR activities every year.
For Financial Year 2014-15 Calculation: Average net profit of FY 2011-12, 2012-13 & 2013-14 needed to be considered.
As per the Act, applicability criteria are to be considered ‘during any financial year’ whereas as per the Rules, it is ‘3 consecutive financial years’ to be considered for CSR applicability. It seems that a reasonable view would be to determine the applicability as per the Rules.
Example of applicability as per the Rules (Rs. in Crores)
In the above case, CSR is not applicable for the FY 2015-16 since in one of the 3 consecutive financial years applicability criteria is below the threshold limit.
Every applicable Company should spend in every financial year-
At least 2% of the ‘average net profits’ of the Company, made during 3 immediately preceding financial years.
‘Average net profit’ shall be calculated in accordance with the provisions of Section 198 (sec 198 relates to calculation of net profits for the purpose of determining the limits for managerial remuneration)
WHAT TO DO WHEN CSR IS APPLICABLE?
Once a company is covered under the ambit of the CSR, it shall be required to comply with the provisions of the CSR. The companies covered under the Sub section 1 of Section 135 shall be required to do the following activities:
as provided under Section 135(1) itself, the companies shall be required to Constitute Corporate Social Responsibility Committee of the Board "hereinafter CSR Committee". The CSR Committee shall be comprised of 3 or more directors, out of which at least one director shall be an independent director.
The Board''''''''''''''''''''''''''''''''s report shall disclose the compositions of the CSR Committee.
All such companies shall spend, in every financial year, at least 2% (two per cent) of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy. It has been clarified that the average net profits shall be calculated in accordance with the provisions of Section 198 of the Companies Act, 2013.
Also, proviso to the Rule provide 3(1) of the CSR Rules that the net worth, turnover or net profit of a foreign company of the Act shall be computed in accordance with balance sheet and profit and loss account of such company prepared in accordance with the provisions of clause (a) of sub-section (1) of section 381 and section 198 of the Companies Act, 2013.
REPORTING FOR CSR
Rule 8 of the CSR Rules provides that the companies, upon which the CSR Rules are applicable on or after 1st April, 2014 shall be required to incorporate in its Board''''''''''''''''''''''''''''''''s report an annual report on CSR containing the following particulars:-
A brief outline of the company''''''''''''''''''''''''''''''''s CSR Policy, including overview of projects or programs proposed to be undertaken and a reference to the web-link to the CSR policy and projects or programs;
The composition of the CSR Committee;
Average net profit of the company for last three financial years;
Prescribed CSR Expenditure (2% of the amount of the net profit for the last 3 financial years);
Details of CSR Spent during the financial year;
In case the company has failed to spend the 2% of the average net profit of the last three financial year, reasons thereof;
CSR COMMITTEE OF BOARD
Company to which CSR is mandatory should appoint a CSR Committee to undertake and monitor CSR activities.
CSR Committee of Board should consist of 3 or more Directors, out of which at least 1 director shall be Independent Director subject to the following criteria-
An unlisted Public Company this is covered under CSR provisions, but is not required to have Independent Director need not have Independent director on the CSR Committee. (Amendment proposed to-if those company having no applicability of Independent Directors then the Company shall have its CSR Committee with two or more Directors, dated March,2016)
A Private Company which has only 2 directors on its Board shall constitute its CSR Committee with 2 such directors.
A Foreign Company will have at least 2 persons on its CSR Committee out of which one person shall be specified under Section 380(1)(d) (e. g Director Resident in India) of the Act and the other person will be nominated by the Foreign Company.
CSR COMMITTEE MEETING:
Law is silent w.r.t. number of CSR Committee meetings in a year. So it is dependent on the requirement of the Company. However there is no restriction if CSR Committee meeting conduct business by circulation.
For CSR Committee Quorum Law is silent again. It is recommended to apply same quorum provisions as are applicable to board meetings under section 174 of the Companies Act, 2013.
ROLE OF CSR COMMITTEE
The CSR Committee constituted in pursuance of Section 135 of the Companies Act, 2013 shall be required to carry out the following activities:
a) Formulate and recommend to the Board, a Corporate Social Responsibility Policy which shall indicate the activities to be undertaken by the company(Amendment proposed to “areas or subjects” dated March, 2016) specified in Schedule VII;
b) Recommend the amount of expenditure to be incurred on the activities referred to in clause (a); and
c) Monitor the Corporate Social Responsibility Policy of the company from time to time.
ROLE OF BOARDOF DIRECTORS (BOD) IN RESPECT TO CSR
Approve the CSR Policy for the Company after taking into account the recommendations made by the CSR Committee and disclose the contents of the CSR Policy in the Directors Report and also place it on the Company’s website.
Ensure that the activities which are included in the CSR Policy of the Company are undertaken by the Company.
The Company shall give preference to the local area and areas around it where it operates for spending the amount earmarked for CSR activities.
The Directors Responsibility Statement shall disclose the composition of the CSR Committee.
WHAT IF A COMPANY CEASES TO BE COVERED UNDER SECTION 135?
Rule 3(2) of the Corporate Social Responsibility Rules, 2014 provides that every company which ceases to be a company covered under section 135(1) of the Act for three consecutive financial years shall not be required to:
constitute a CSR Committee ; and
comply with the provisions contained in subsection (2) to (5) of the said section till such time it meets the criteria specified in sub section (1) of Section 135.
Accordingly, if a company, for 3 consecutive years, ceases to be covered under the ambit of section 135(1), it shall not be required to fulfill the conditions relating to the constitution of CSR Committee and other related provisions.
COMPANIES (CSR POLICY) RULES, 2014
MCA, in exercise of its power conferred under Section 135 and subsections (1) and (2) of Section 469 of the Act and vide notification dated 27 February, 2013 has notified Companies (CSR Policy) Rules, 2014.(the Rules).
These Rules will be effective from 1st April, 2014.
CSR (Corporate Social Responsibility)
CSR means and includes but is not limited to –
Projects or programs relating to CSR activities indicated in Schedule VII of the Act ; or
Projects or programs relating to activities undertaken the Board in accordance with the recommendations of the CSR Committee as per the CSR policy of the Company. The CSR policy shall cover activities specified in Schedule VII of the Act but excludes activities undertaken in the normal course of business of the Company.
The Objectives of the Policy
This Policy shall be read in line with Section 135 of the Companies Act 2013, Companies (Corporate Social Responsibility Policy) Rules, 2014 and such other rules, regulations, circulars, and notifications (collectively referred hereinafter “Regulations”)as may be applicable and as amended from time to time and will, inter-alia, provide for the following:
Establishing a guideline for compliance with the provisions of Regulations to dedicate a percentage of Company’s profits for social projects.
Ensuring the implementation of CSR initiatives in letter and spirit through appropriate procedures and reporting Creating opportunities for employees to participate in socially responsible initiative
In this Policy unless the context otherwise requires:
(a)"Act" means the Companies Act, 2013;
(b) "Annexure" means the Annexure appended to these rules;
(c) "Corporate Social Responsibility (CSR)" means and includes but is not limited to
(i) Projects or programs relating to activities specified in Schedule VII to the Act or
(ii) Projects or programs relating to activities undertaken by the board of directors of a company (Board) in pursuance of recommendations of the CSR Committee of the Board as Per declared CSR Policy of the company subject to the condition that such policy will cover subjects enumerated in Schedule Vll of the Act.
(d) "CSR Committee" means the Corporate Social Responsibility Committee of the Board referred to in section 135 of the Act
(e) "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.
(f) "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 :-
Any profit arising from any overseas branch or branches of the company'''''''''''''''''''''''''''''''' whether operated as a separate company or otherwise;
(ii) Any dividend received from other companies in India, which are covered under and complying with the provisions of section 135 of the Act: Provided that net profit in respect of a financial year for which the relevant financial
(2) Words and expressions used and not defined in these rules but defined in the Act shall have the same meanings respectively assigned to them in the Act.
CSR Activities contains the benefits to whole society.
The Policy recognizes that corporate social responsibility is not merely compliance; it is a commitment to support initiatives that measurably improve the lives of underprivileged by one or more of the following focus areas as notified under Section 135 of the Companies Act 2013 and Companies (Corporate Social Responsibility Policy) Rules 2014:
Eradicating hunger, poverty & malnutrition, promoting preventive health care & sanitation & making available safe drinking water;
Promoting education, including special education & employment enhancing vocation skills especially among children, women, elderly & the differently unable & livelihood enhancement projects;
iii. Promoting gender equality, empowering women, setting up homes & hostels for women & orphans, setting up old age homes, day care centers & such other facilities for senior citizens & measures for reducing inequalities faced by socially & economically backward groups;
Reducing child mortality and improving maternal health by providing good hospital facilities and low cost medicines;
Providing with hospital and dispensary facilities with more focus on clean and good sanitation so as to combat human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases;
Ensuring environmental sustainability, ecological balance, protection of flora & fauna, animal welfare, agro forestry, conservation of natural resources & maintaining quality of soil, air & water;
vii. Employment enhancing vocational skills
viii. Protection of national heritage, art & culture including restoration of buildings & sites of historical importance & works of art; setting up public libraries; promotion & development of traditional arts & handicrafts;
Measures for the benefit of armed forces veterans, war widows & their dependents;
Training to promote rural sports, nationally recognized sports, sports & Olympic sports;
Contribution to the Prime Ministers National Relief Fund the or any other fund set up by Central Government for socio-economic development & relief & welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities & women;
xii. Contributions or funds provided to technology incubators located within academic institutions, which are approved by the Central Government;
xiii. Rural development projects, etc
xiv. Slum area development.
Explanation. - For the purposes of this item, the term “slum area” shall mean any area declared as such by the Central Government or any State Government or any other competent authority under any law for the time being in force.
The Above list is illustrative not exhaustive. All activities under the CSR activities should be environment friendly and socially acceptable to the local people and Society. Contribution towards C.M relief fund shall be a part of CSR activities above 2% of Net profit other than the activities mentioned above. Further Ministry of Corporate Affairs vide Notification dated 24.10.2014 increased the scope of contribution made towards Corporate Social Responsibility Activities namely:
(i) In item (i), after the words "and sanitation", the words "including contribution to the Swach Bharat Kosh set-up by the Central Government for the promotion of sanitation" shall be inserted;
(ii) In item (iv), after the words "and water", the words "including contribution to the Clean Ganga Fund set-up by the Central Government for rejuvenation of river Ganga" shall be inserted.
Medical activities are not covered under Schedule VII
Activities set out in Schedule-VII seem very general and vague in nature Example: eradicating extreme hunger and poverty.
Determination of what is a social cause which fits into Schedule VII can be ambiguous.
Since the list in Schedule VII mentions ‘activities included’, further clarity on which other items may qualify would be needed.
HOW TO STRUCTURE OF CSR ACTIVITIES
CSR activities undertaken by the Company should be as per its CSR Policy and can be in the form of projects or programs or activities but should not include activities undertaken in its normal course of business.
CSR activities may be undertaken through a registered trust or a registered society or a Company established by the Company or its Holding or Subsidiary or Associate Company under Section 8 of the Act subject to the following conditions-
If the trust, society or Company is not established by the Company then it shall have an established track record of 3 years in undertaking similar projects or programs; and
The Company has specified the project or programs to be undertaken through these entities, the modalities of utilization of funds on such projects programs and the monitoring and reporting mechanism.
A Company may also collaborate with other Companies for undertaking CSR Activities in such a manner that CSR Committees of respective Companies are in a position to report separately on such activities.
CSR activities undertaken in India only shall amount to CSR Expenditure.
CSR activities which benefit only the employees of the Company and their families shall not be considered as CSR activities.
Companies may build CSR capacities of their own personnel as well as those of their Implementing agencies through Institutions with established track records of 3 financial years but such expenditure shall not exceed 5% of total CSR expenditure of the Company in 1 financial year.
Contribution to any political party whether directly or indirectly is not considered as CSR activity.
Activities which not qualifies as CSR Activities
Activities undertaken in normal course of business.
Activity undertaken outside India.
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
Contribution of any amount directly or indirectly to any political party under section 182 of the Act, shall not be considered as CSR activity.
Activity not covered within schedule VII of the 2013 Act.
CSR Policy & Expenditure
CSR activities included in CSR Policy should be related to the activities included in Schedule VII of the Act.
CSR Policy of the Company shall specify that the surplus arising out of the CSR activities shall not form part of the business profit of the Company.
‘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:-
– a list of CSR projects or programs which a company plans to undertake falling within the purview of the Schedule VII of the Act, specifying modalities of execution of such project or programs and
CSR Expenditure shall restrict to Schedule VII and therefore the Board has to limit the scope of CSR.
In case of an Indian Company, BOD Report shall include an annual report on CSR activities as per the Annexure
In case of a Foreign Company, the Balance Sheet filed under Section 381(1)(b) of the Act shall contain an Annexure regarding report on CSR.
The format of the Annexure has been mentioned in the Companies (CSR Policy) Rules, 2014.
The CBDT is in the process of issuing guidelines/clarifications on the deductibility of the expenditure incurred on CSR activities.
Water Supply including Drinking Water:
Health Care organizing, health awareness Camps on
Sports and Culture
8. THE GEOGRAPHIC REACH
The Act provides that the Company shall give preference to the local area and areas around it where it operates, for spending the amount earmarked for Corporate Social Responsibility.
The Company will thus give preference to conducting CSR activities in the state of Bihar herein the Company has/will have its operations. However, the Committee may identify such areas other than stated above, as it may deem fit, and recommend it to the Board for undertaking CSR activities.
ANNUAL SPENDS/ALLOCATION OF FUNDS ANNUAL SPENDS/ALLOCATION OF FUNDS
1 The Company would spend not less than 2% of the average Net Profits of the Company made during the three immediately preceding financial years. The surplus arising out of the CSR activity will not be part of business profits of the Company. The Corpus would thus include the 2% of average net profits, as aforesaid, any income arising there from and surplus
Arising out of CSR activities.
2 The Company may build CSR capacities of its personnel and/or those of its implementing agencies through Institutions with established track records of at least three financial years but such expenditure shall not exceed five percent of total CSR expenditure of the Company in one financial year.
3 However if the Company ceases to be covered under sub-section (1) of Section 135 of the Act for three financial years, then it shall not be required to, comply with the provisions laid down under sub-section (2) to (5) of the said section, till such time it meets the criteria specified in sub-section (1) of the Act.
The CSR Committee will consist of three Directors, who shall meet as per requirement of the Company in a year to discuss and review the CSR activities and policy.
The quorum shall be at least two members are required to be present for the proceeding to take place.
SCOPE AND FUNCTIONS OF CSR COMMITTEE
The CSR committee will recommend a formal CSR Policy, this document and will recommend particular CSR activities, set forth a budget, describe how the company will implement the project, and establish a transparent means to monitor progress.
ADMINISTRATION OF CSR PROJECTS
The Corporation can meet its CSR obligations by funneling its activities on its own or through a third party, such as a society, trust, foundation or Section 8 company (i.e., a company with charitable purposes) that has an established record of at least 3 (three) years in CSR-like activities. Companies may also collaborate and pool their resources, which could be especially useful for small and medium-sized enterprises. Managing Director will have the power to sanction any project for CSR up to a limit of 7.5 lakhs, above which Boards approval will be required to sanction the amount.
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.
EFFECT OF NONE COMPLYING WITH CSR PROVISIONS:
If a company fails to provide ors spend such amount, the Board shall specify reasons for not spending the amount in its report.
Thus, spending on CSR activities is not mandatory and no penalty can be imposed for non-compliance.
INCOME TAX ASPECTS:
Expenditure on CSR is required. However, allow ability of expenditure on CSR as deduction under section 37 of Income Tax Act is not yet clear, particularly because spending on CSR is not mandatory.
Any surplus arise of the CSR project will not form part of the Business income.
The Board of Director’s report undertakes Section 134(3) of the 2013 Act shall disclose the composition of the Corporate Social Responsibility Committee.
a) The investment in CSR should be project based and for every project time framed periodic mile stones should be finalized at the outset.
b) Project activities identified under CSR are to be implemented by Specialized Agencies and generally NOT by staff of the organization. Specialized Agencies could be made to work singly or in tandem with other agencies.
c) Such specialized agencies would include:
i) Community based organization whether formal or informal.
ii) Elected local bodies such as Panchayats
iii) Voluntary Agencies (NGOs)
iv) Institutes/ Academic Organizations
v) Trusts, Mission etc.
vi) Self-help groups
vii) Government, Semi Government and autonomous Organizations.
viii) Standing Conference of Public Enterprises (SCOPE)
ix) Mahila Mondals/Samitis and the like Contracted agencies for civil works Professional Consultancy Organization etc.
As per the regulations the company will set aside, for annual CSR activities, an amount equal to 2% of the average net profits of the Company made during the three immediately preceding financial years. Any unutilized CSR allocation fund of a particular year, will be carried forward to the next financial year i.e. the CSR budget will be non lapsable in nature.
the tax treatment of CSR spent will be in accordance with the Income Tax Act, 1961 as may be notified by the central board of Direct taxes.
The Company Board of Directors shall ensure that in each financial year the Company spends at least 2% of the average Net Profit made during the three immediate preceding financial years
For Financial Year 2015-16 Calculation:- Average net profit of FY 2012-13, 2013-14 and 2014-2015 needed to be considered.
“Net profit means the net profit as per the financial statement of the company prepared in accordance with the applicable provisions of the Act, but shall not include the following:
(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 the provisions of section 135 of the Act.
As per section 135 of the Companies Act, the Company will report reasons for under spending of the allocated CSR budget of the current financial year in the template provided by the Ministry of Corporate Affairs. This reporting will be done Annual Report and signed off by the Board of Directors.
III. In case of any surplus arising out of CSR projects the same shall not form part of business profits of the Company
The Company may collaborate or pool resources with other companies to undertake CSR activities, through any non-profit organization, if required.
Amendments to the policy
The Board of Directors on its own and/or on the recommendation of CSR committee can amend its policy as and when required deemed fit. Any or all provisions of CSR Policy would be subjected to revision/amendment in accordance with the regulations on the subject as may be issued from relevant statutory authorities, from time to time.
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About Author : Qualified Company Secretary with LLB, M.Com, ADICA, DIFTP and having more than 7 years experience in Corporate, Legal, IPR, Accounts & Finance, NCLT, M & A, Insolvency, IPR, NBFC and Listing Matters.
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