Corporate Social Responsibility (Section 135 of the Companies Act, 2013) :
There was no provision under the Companies Act, 1956 for corporate Social Responsibility (CSR). The Companies Act, 2013 for the first time has introduced a welcome provision requiring corporate to mandatorily spend a prescribed percentage of their profits on certain specified areas of social upliftment in discharge of their social responsibilities. A new section 135 of the Companies Act, 2013 came into force from 1st April, 2014 which provides for it.
Broadly, CSR implies a concept, whereby companies decide voluntarily to contribute to a better society and a cleaner environment – a concept, whereby the companies integrate social and other useful concerns in their business operations for the betterment of its stakeholders and society in general in a voluntary way.
Corporate Social Responsibility: The Companies (CSR Policy) Rules, 2014 provides the exhaustive definition of CSR which provides that the 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 VII of the Act.
According to section 135 of the Companies Act, 2013:
(i) Which Company is required to constitute CSR committee:
(a) Every company including its holding or subsidiary, and a foreign company defined under section 2(42) of the Companies Act, 2013 having its branch office or project office in India, having
(1) net worth of rupees 500 crore or more, or
(2) turnover of rupees 1000 crore or more or
(3) a net profit of rupees 5 crore or more during any financial year shall constitute a Corporate Social Responsibility Committee of the Board.
(b) The CSR Committee shall institute a transparent monitoring mechanism for implementation of the CSR projects or programs or activities undertaken by the company.
(c) However, the net worth, turnover or net profit of a foreign company shall be computed in accordance with balance sheet and profit and loss account of such company as prepared in accordance with the provisions of section 381(1)(a) and section 198 of the Act.
(ii) Exclusion of Companies
Every company which ceases to be a company covered under subsection (1) of section 135 of the Act for three consecutive financial years
(1) shall not be required to constitute a CSR Committee, and
(2) is not required to comply with the provisions as per section 135
(iii) Composition of CSR Committee:
(a) The CSR Committee shall be consisting of three or more directors, out of which at least one director shall be an independent director.
(b) An unlisted public company or a private company which is not required to appoint an independent director shall have its CSR Committee without such director.
(c) A private company having only two directors on its Board shall constitute its CSR Committee with two such directors.
(d) With respect to a foreign company covered as above, the CSR Committee shall comprise of at least two persons of which one person shall be as specified under section 380(1)(d) of the Act and another person shall be nominated by the foreign company.
(e) The Board’s report under sub-section (3) of section 134 shall disclose the composition of the CSR Committee.
(iv) Duties of CSR Committee:
The CSR Committee shall,—
(a) formulate and recommend to the Board, a CSR Policy which shall indicate the activities to be undertaken by the company as 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 CSR Policy of the company from time to time.
(v) Contents of the CSR Policy:
(a) List of CSR projects or programs which a company plans to undertake fall ing within the purview of the Schedule VII of the Act, specifying modalities of execution of such project or programs and implementation schedules for the same; and
(b) monitoring process of such projects or programs:
(c) However, the CSR activities do not include the activities undertaken in pursuance of normal course of business of a company.
(d) The Board of Directors shall ensure that activities included by a company in its CSR Policy are related to the activities included in Schedule VII of the Act.
(e) The CSR Policy of the company shall specify that the surplus arising out of the CSR projects or programs or activities shall not form part of the business profit of a company.
(vi) Duties of the Board in relation to CSR:
The Board of every company referred to in sub-section (1) shall,—
(1) after taking into account the recommendations made by the CSR Committee, approve the CSR Policy for the company and disclose contents of such Policy in its report and also place it on the company’s website, if any, in such manner as may be prescribed; and
(2) ensure that the activities as are included in CSR Policy of the company are undertaken by the company.
(vii) Amount of contribution towards CSR:
(a) The Board of every company shall ensure that the company spends, in every financial year, at least two per cent. of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its CSR Policy.
(b) The company shall give preference to the local area and areas around it where it operates, for spending the amount earmarked for CSR activities.
(c) If the company fails to spend such amount, the Board shall, in its report, specify the reasons for not spending the amount
(d) Companies may build CSR capacities of their own personnel as well as those of their Implementing agencies through Institutions with established track records of at least three financial years. However, such expenditure including expenditure on administrative overheads, [inserted by the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2014] shall not exceed five percent of total CSR expenditure of the company in one financial year.
(viii) CSR Activities:
Rule 4 of the Companies (CSR Policy) Rules, 2014 states the various CSR activities that shall be undertaken by the companies. Following are the CSR activities-
(1) The CSR activities shall be taken by the company as per its CSR Policy, as projects or programmes or activities excluding activities undertaken in pursuance of its normal course of business.
(2) The Board of accompany may decide to undertake its CSR activities approved by the CSR Committee through a registered trust or a registered society or a company established under section 8 of the Act 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.
Provide that – if such trust, society or company 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 programmes or projects;
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
(3) A company may also collaborate with other companies for undertaking projects or programs or CSR activities in such manner that the CSR Committees of respective companies are in a position to report separately on such projects or programs in accordance with these rules.
(4) Subject to provisions contained in section 135(5), the CSR projects or programs or activities undertaken in India only shall amount to CSR Expenditure.
(5) 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.
(6) Companies may build CSR capacities of their own personnel as well as those of implementing agencies through Institutions with established track records of at least three financial years but such expenditure shall not exceed 5% of total CSR expenditure of the company in one financial year.
(7) Contribution of any amount directly or indirectly to any political party under section 182 of the Act, shall not be considered as CSR activity.
(ix) Exceptions to CSR Activities:
The Companies (CSR Policy) Rules, 2014 provides for some activities which are not considered as CSR activities:
(1) The CSR projects or programs or activities undertaken outside India.
(2) The CSR projects or programs or activities that benefit only the employees of the company and their families.
(3) Contribution of any amount directly or indirectly to any political party under section 182 of the Act.
(x) Calculation of Average Net profit:
(a) Here, “average net profit” shall be calculated in accordance with the provisions of section 198.
(b) “Net profit” shall not include the following:
(1) Any profit arising from any overseas branch or branches of the company, whether operated as a separate company or otherwise; and
(2) Any dividend received from other companies in India, which are covered under and complying with the provisions of section 135 of the Act.
(c) However, net profits in respect of a financial year for which the relevant financial statements were prepared in accordance with the provisions of the Companies Act, 1956, shall not be required to be re-calculated in accordance with the provisions of the Act:
(d) It is further provided that 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.
(xi) CSR Reporting:
(a) 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.
(b) In case of a foreign company, the balance sheet filed under section 381(1)(b) shall contain an Annexure regarding report on CSR.
(xii) Activities specified under Schedule VII:
Activities which may be included by companies in their CSR Policies Activities as specified under Schedule VII are as follows:
(1) eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swach Bharat Kosh set-up by the Central Government for the promotion of 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, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups;
(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 including contribution to the Clean Ganga Fund set up by the Central Government for rejuvenation of river Ganga;
(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 arts 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, paralympic 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. [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.] [Inserted by MCA vide Notification G.S.R. 568(E) dated 6th August, 2014.]
The MCA vide General Circular No. 21/2014 dated 18th June, 2014 has provided many clarifications with regard to provisions of Corporate Social Responsibility under section 135 of the Companies Act, 2013 which are as under:
(i) 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, 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.
(ii) It is further clarified that CSR activities should be undertaken by the companies in project/ programme mode. One-off events such as marathons/ awards/ charitable contribution/ advertisement/ sponsorships of TV programmes etc. would not be qualified as part of CSR expenditure.
(iii) 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.
(iv) 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.
(v) “Any financial year” referred under Sub-Section (1) of Section 135 of the Act read with Companies CSR Rule, 2014, implies ‘any of the three preceding financial years‘.
(vi) 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.
(vii) ‘Registered Trust‘ would include Trusts registered under Income Tax Act 1956, for those States where registration of Trust is not mandatory.
(viii) 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 companies 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.