Companies Act 2013 and CSR

by Margie M on January 21, 2018

Companies Take action 2013 and CSR

Corporate Social Responsibility (CSR) has become an essential part of company’s performing. With businesses having a legal entity and presence in the eye of law must contribute towards the culture that they function in. This has granted emergence to CSR activities being evolved over a period. Corporate Community Responsibility (CSR) identifies various activities being undertaken with the purpose of public welfare and welfare of the masses at large and includes various pursuits like Healthcare facilities, education, females empowerment, sanitation and hygiene etc.

Though expenditures happen to be incurred by the companies with regard to CSR activities since long ago, but the evolution of CSR actions can be broadly categorized into Pre Corporations Act 2013 and post Companies Act 2013 period. Further there are several income tax implications which are connected with CSR activities both in pre and content Companies Act 2013. Talking about the same at length as follows:

Prior to Companies Act, 2013:

Prior to Companies Work 2013, the regulations as per Companies Action 1956 were relevant wherein there was no mandatory requirement on behalf of the companies to attempt CSR activities. It was on the company’s option to decide whether to attempt CSR activities or not really. There were many businesses who did undertake CSR activities but not out of legal compulsion but to enhance their goodwill and setup better networks etc.

Tax Implication:

Thus, as the CSR actions was voluntary for companies there was no different provision described in this regard in the TAX Act, 1961 and different amendments thereon until 2013. Any expenditure incurred by companies as part of their CSR programmes was cured in the similar manner and were guided by the different provisions of the TAX Act. Thus, such expenditures were claimed as deduction how to write a summary for corporations to reach at their taxable money according to sections like 35(2AA), 35(AC), 80G etc. Furthermore, such CSR activities related expenditure was generally claimed as a general deduction as per section 37(1) of TAX Act, 1961 rather than under sections 30 to 36 working with specific expense related deductions. This was the procedure for CSR actions and their tax implications.

Post Companies Act 2013:

With the introduction of Companies Act, 2013 making countless amendments to the initial Companies Act of 1956, there is an important amendment with regard to the Corporate Social Responsibility. With Companies Act, 2013 section 135(1) was introduced which made CSR activities mandatory for corporations to come to be incur under selected application criteria. Therefore companies with certain degree of turnover or earnings (mentioned further) would be compulsorily necessary to spend a particular percentage of their gains as CSR activities. Definition for the same is also mentioned in the action.

Applicability:

The section 135(1) as per Companies Act 2013is applicable to all or any the companies if they are domestic business or foreign enterprise, holding or subsidiary provider, public or private firm, if during the three preceding financial year

  • Turnover of the company is 1000 cr. or even more.
  • Net worth of the company is 500 cr. or more.
  • Net profit of the company is 5 cr. or more.

On fulfilling any of the above three mentioned standards, CSR obligations arise for the company.

Quantum of Money to be Spent on CSR Activities:

As per the mandate of the Companies Take action 2013 u/s 135(1), the business which fulfils all these criteria is required to spend the least 2% of Common Net profit of the business for promptly three preceding monetary years as CSR activities.

Further, such amount should be spent in accordance with the things falling within the regulations of Program 7 of the firms Work, 2013. This list of activities which are thought to be the broad spectrum of social welfare activities isn’t regarded an exhaustive list. So, any expenditure for public welfare as permitted by the company’s panel and CSR committee would be regarded as CSR related expense provided it will not be based on the business and its functions in any way and should primarily focus upon the welfare of the world or masses most importantly.

In case the company is not able to spend the required volume and fulfil its CSR obligation, they must disclose the same in their Annual reports.

Computation of Typical Net Profit:

The computation of Common net profit which forms the bottom for identifying the minimum amount to be allocated to CSR activities is discussed in the section 198 As per companies Act 2013. This should not are the following:

  • Any profits or gains of any abroad branch of the business.
  • Any dividends received from any Indian company which has already been in compliance with the Section 135 of the Companies Act 2013 i just.e. it already complies with the CSR related obligation and therefore dividend could have been distributed after complying with CSR obligation.

The computation of the common net profit could be summarised as follows:

Particulars

Amount

Net profit After tax

XXX

Add:

Allowed Credits

Subsidies received from asa sample paper any federal government or public authority

XX

Gain on sales of any immovable house (original cost – WDV)

XX

Less:

Credits disallowed:

Profit of capital mother nature like sale of any undertaking or unit

XX

Profit earned on sales of forfeited shares

XX

Premium received on debentures or shares

XX

Gain on sales of any immovable property or home (sales consideration – original expense)

XX

Surplus on revaluing asset or liability at good worth (routed through P/L)

XX

Less:

Expenses Allowed

Directors Remuneration

XX

Bonus/ commission paid to staff

XX

Interest on debentures

XX

Usual working Charges

XX

Interest on loans (guaranteed or unsecured)

XX

Tax on business gains (for any special reason)

XX

Tax on abnormal gains of the business

XX

Depreciation degree to Section123

XX

Insurance expenses

XX

Bad debts written off

XX

Repairs (apart from included in capital expenditures)

XX

Prior period items

XX

Contributions to charitable trusts

XX

Legal liability for just about any kind of damages or compensations

XX

Add:

Expenses Disallowed

Income tax

XX

Capital reduction on any sales of undertaking

XX

Expenses on revaluing asset and liabilities on good value

XX

Compensations damages or any voluntary payments

XX

RESULTING AMOUNT- NET Earnings FOR CSR

XXX

Average of such net profit for promptly preceding three economical years will be the Average Net earnings for CSR obligation. 2% of such Normal Net Profit amount will be the minimum CSR expenditure to end up being incurred.

Activities not falling under the purview of CSR activities.

All expenses can’t be considered as CSR expense. As stated earlier, they should be in conformity with the actions brought up in the list / schedule VII of the firms Action. Any activity undertaken by the business which is in conformity with the normal course of running the company’s business wouldn’t normally be regarded as CSR activity. The activities which will be regarded to be in the normal span of running the business’s business are:

  • Pre-condition of incorporating or owning a business
  • Any contractual obligation on the main company requiring to undertake such activities
  • If such activity falls beneath the legal obligation for the company as per any other laws ir statutory provision governing the business.

Further any activity executed outside the geographical boundary of India or benefiting simply the employees of the company or any contribution made to political parties would not fall under the purview of CSR actions.

Discharge of CSR Related Obligation:

The companies can carry out their CSR expenses in the next three ways:

  • Fulfilling the CSR related obligation by producing any type of contribution to specified cash according to the list included in the Schedule VII.
  • By means of any registered NGO, culture, trust etc.
  • In other ways as mandated in the firms (Corporate Social Responsibility) Rules 2014.

Penalties with Regard to Non-Compliance:

Any non-compliance on portion of the company in fulfilling their CSR obligation would attract penalties as follows:

  • Fine for the company of no less than 50,000 Rs. which might extend up to Rs. 25 lakhs.
  • Officers of the business which are convicted of default would get imprisonment as high as three years or Fine of no less than Rs. 50,000 which may prolong up to Rs. 5 Lakhs.
  • Both the penalties (for the business and the officers in default) could be attracted as the case may be.

Other Regulations:

Following other characteristics and restrictions regarding CSR obligation happen to be as follows:

  • CSR expenditure can be both in the form of spending or contribution made by the company.
  • CSR expenditure is not regarded as a charity or donation created by the company in virtually any form.
  • Any kind of surplus or any quantity unspent arising from the concerned CSR activity would not be regarded as the business enterprise profits for the business.
  • Further no provision for unspent total be made. Only disclosure in the board report is necessary.
  • Any form of unwanted expenditure incurred beyond the worried limit of 2 % of average net earnings is voluntary and can’t be set off against potential CSR obligations of the business.
  • If any grant can be received for undertaking any CSR expenditure, the total amount spent should be considered net of grants

Tax Implications:

After the introduction of mandatory Corporate Sociable Responsibility (CSR) obligation according to the firms Act 2013, there is an explanation issued as per the Finance Act, 2014. It stated that any type of CSR expenditure that’s incurred by the business shall NOT be thought to be the expenditure incurred by the business because of its business or profession. As a result, deductions with regard to CSR expenditure for minimizing the corporate income are not justified and hence can’t be claimed.

Thus, on one side it really is compulsory to undertake CSR related expenditure as mandated by Companies Act, 2013 while however Income Tax Act does indeed disallow such expenditure to get claimed as deductions.

General Deductions under section 37(1):

The income tax provisions as per Section 37(1) says that expenditure certainly not falling beneath the section 30 to 36 of the income tax act would be allowed as general deduction under this section if the next conditions are satisfied:

  • Expense isn’t in the type of Capital Expenditure
  • Expense isn’t a type of Personal Expense
  • Expense is not related to any form of criminal offense which is certainly prohibited by any law
  • Such expense should necessarily be undertaken for the intended purpose of conducting the business enterprise or occupation (wholly and exclusively).

Thus, as per amendment made in the Finance Act 2014, any sort of CSR expenditure which does indeed are categorized as the provisions of section 30 to 36 and 80G of Income Tax Act, 1956, will be allowed as deduction to become claimed by the business. But any other sort of CSR expenditure not falling under the above mentioned provisions can’t be claimed as standard deduction under section 37 of the act.

As an outcome, companies as

a part of their tax planning procedures should undertake CSR actions (as stated in routine VII) which can also be claimed as deductions under section 30 to 36 and 80G of Income Tax Act 1961. This might help the firms to fulfil their CSR obligation needs according to Companies Act and in addition assert deduction in the Tax act in order that their taxable income can be reduced. This would serve dual purpose for the firms.

Concept of Software of Income:

As per the Financing ministry and Income Tax authorities, any type of Expenditure incurred for CSR actions are in the sort of APPLICATION OF Salary. This implies that it is not an expense incurred to earn income rather it is the use of already earned money towards the welfare of the contemporary society as their interpersonal responsibility. The TAX Act have been developed on the grounds that any sort of expenditure that involves “Application of Income” wouldn’t normally be allowed to claim as a deduction according to the provisions. Thus, any kind of CSR expenditure can’t be claimed as a deduction and so would be disallowed in the hands of the company (for income tax purposes).

Contrary to the earlier mentioned view there are certain people who believe that CSR actions being mandatory for the company ought to be allowed as a deduction.

Further it was argued by experts that Director’s remuneration can be computed as percentage of net revenue which can be allowed as a deduction in income tax act and so CSR related expenditure should have been allowed as deduction. It really is opposed by income tax authorities on the ground that director’s remuneration falls under the normal span of running the business and therefore I allowed under section 37(1) as a general deduction which is not the circumstance with CSR expenditure. The foundation of incorporating any expenditure as related to CSR is that it should not fall under the normal course of running the business and thus will not adhere to the provisions of Section 37(1).

Differential Form of Taxes Treatment Pre and Content Companies Act, 2013:

The major kind of difference in tax treatment pre and post introduction of Companies Action 2013 is that deduction for CSR expenditure was allowed as well as a general deduction under section 37(1) along with deduction claim under sec 30 to 36 or 80G for CSR activities, prior to introduction of companies Take action 2013. This changed post introduction of Companies Act 2013 whereby the CSR expenditure cannot be claimed as a general deduction under section 37(1) but could be claimed as deduction if it falls under the purview of section 30 to 36 and section 80G of the TAX Act.

Details of CSR Spending of Companies

ITC LIMITED

Net Average Profit for the last three years = Rs. 12338.22 crores

CSR Expenditure according to guidelines = Rs. 246.76 crores

Actual CSR Spending = Rs. 247.50 crores

Amount unspent = Zero

Activities carried out in CSR which can be claimed as deduction in Income Tax:

Activities Under Company’s Work 2013

Deduction under TAX Act, 1961

Promoting Preventive Health care, Sanitation & Poverty Alleviation (Routine VII – (i))

Section 35AC r.w. Rule 11k(i)(a),(f),(j) of the 1962 Rules

80G(2)(iiihk)

Livelihood Enhancement (Program VII – (ii))

Section 35AC r.w. 11K(we)(c),(i),(o),(p),(s) of the 1962 Rules

Economic Empowerment of Women (Schedule VII – (iii))

Section 35AC r.w. Rule 11K(i)(n),(my spouse and i) of the 1962 Rules

Ensuring Environmental Sustainability (Routine VII – (iv))

Section 35AC r.w. Rule 11K(i just)(d),(h),(l),(q),(r) of the 1962 Guideline & 80G(2)(iiihl)

Protection of National Heritage, Art & Culture (Routine VII – (v))

Section 35AC r.w. Rule 11K

Rural Development (Plan VII – (x))

Section 35AC and Section 35CCA

TATA MOTORS

Net Average Profit going back 3 years = Lack of Rs. 2034 crores

CSR Expenditure according to guidelines = Not Applicable because of loss

Actual CSR Spending = Rs. 20.57 crores

Amount Unspent = Zero

Activities carried out in CSR which can be claimed as deduction in TAX:

Activities Under Company’s Work 2013

Deduction under Income Tax Act, 1961

Promoting Preventive Healthcare, Sanitation & Poverty Alleviation (Routine VII – (i))

Section 35AC r.w. Rule 11k(we)(a),(f),(j) of the 1962 Rules

80G(2)(iiihk)

Livelihood Enhancement (Program VII – (ii))

Section 35AC r.w. 11K(i just)(c),(i),(o),(p),(s) of the 1962 Rules

Economic Empowerment of Females (Schedule VII – (iii))

Section 35AC r.w. Rule 11K(i)(n),(i) of the 1962 Rules

Ensuring Environmental Sustainability (Schedule VII – (iv))

Section 35AC r.w. Rule 11K(i)(d),(h),(l),(q),(r) of the 1962 Guideline & 80G(2)(iiihl)

INFOSYS

Net Average Profit for the last three years = Rs. 12,800 crores

CSR Expenditure regarding to guidelines = Rs. 256.01 crores

Actual CSR Spending = Rs. 202.30 crores

Amount Unspent = Rs. 53.71 crores (some of the tasks undertaken are multi – year)

Activities executed in CSR which can be claimed as deduction in Income Tax:

Activities Under Company’s Action 2013

Deduction under Income Tax Act, 1961

Promoting Preventive Health care, Sanitation & Poverty Alleviation (Program VII – (i))

Section 35AC r.w. Rule 11k(my spouse and i)(a),(f),(j) of the 1962 Rules

80G(2)(iiihk)

Livelihood Enhancement (Routine VII – (ii))

Section 35AC r.w. 11K(i)(c),(my spouse and i),(o),(p),(s) of the 1962 Rules

Ensuring Environmental Sustainability (Program VII – (iv))

Section 35AC r.w. Rule 11K(my spouse and i)(d),(h),(l),(q),(r) of the 1962 Guideline & 80G(2)(iiihl)

Protection of National Heritage, Art & Culture (Schedule VII – (v))

Section 35AC r.w. Rule 11K

Rural Development (Schedule VII – (x))

Section 35AC and Section 35CCA

BRITANNIA

Net Average Profit going back three years = Rs. 523.00 crores

CSR Expenditure relating to guidelines = Rs. 10.46 crores

Actual CSR Spending = Rs. 10.46 crores

Amount Unspent = Zero

Activities executed in CSR that can be claimed as deduction in Income Tax:

Activities Under Company’s Work 2013

Deduction under Income Tax Act, 1961

Promoting Preventive Healthcare, Sanitation & Poverty Alleviation (Timetable VII – (i))

Section 35AC r.w. Rule 11k(my spouse and i)(a),(f),(j) of the 1962 Rules

80G(2)(iiihk)

Livelihood Enhancement (Routine VII – (ii))

Section 35AC r.w. 11K(my spouse and i)(c),(i actually),(o),(p),(s) of the 1962 Rules

Rural Development (Program VII – (x))

Section 35AC and Section 35CCA

WIPRO

Net Average Profit for the last three years = Rs. 7800.2 crores

CSR Expenditure according to guidelines = Rs. 159.82 crores

Actual CSR Spending = Rs. 159.82 crores

Amount Unspent = Zero

Activities carried out in CSR which is often claimed as deduction in Income Tax:

Activities Under Company’s Work 2013

Deduction under Income Tax Act, 1961

Promoting Preventive Healthcare, Sanitation & Poverty Alleviation (Timetable VII – (i))

Section 35AC r.w. Rule 11k(i)(a),(f),(j) of the 1962 Rules

80G(2)(iiihk)

Livelihood Enhancement (Schedule VII – (ii))

Section 35AC r.w. 11K(my spouse and i)(c),(i just),(o),(p),(s) of the 1962 Rules

Ensuring Environmental Sustainability (Plan VII – (iv))

Section 35AC r.w. Rule 11K(we)(d),(h),(l),(q),(r) of the 1962 Rule & 80G(2)(iiihl)

Rural Development (Program VII – (x))

Section 35AC and Section 35CCA

CASE LAWS:

P. Balakrishnan, Commissioner Of … vs Travancore Cochin Chemicals Ltd. on 25 October, 1999

In this case rules, the assesse had paid an amount to the actual fact school and wished to state it as a deduction beneath the welfare expenditure. The AO denied the assessee’s claim and denied the deduction. The matter then continued the Tribunal where the assessee argued that the amount had not been a donation but was paid within an expenditure to the institution, as the kids of almost all of its employees studied now there. The assesse wanted to state the deduction under Section 40A(9) but since, it was for the welfare of organization rather than in the sort of capital expenditure, so it was allowed as a deduction under Section 37(1) and Section 40A(10).

ACIT v Jindal Electricity Limited (IT APPEAL NO. (BLPR) OF 2012)

In this case regulation, the assessee experienced claimed some amount paid for the CSR activity as deduction. However the AO, possessed rejected the claim based on the fact that it was not a statutory but a voluntary expenditure rather than for the purpose of business. In this instance, since it was a case prior to the amendments were raised in Section 37(1). The Tribunal allowed the voluntary CSR to be treated as organization expenditure. The Tribunal based its decision on that the reason 2 of the Act, which states for disallowance just on statutory expenditures. Since, it had been not triggered, so that it was allowed as a deduction.

The Commr Of Income Tax vs M/S Infosys Technologies Ltd on 22 April, 2013

In this case legislation, the assessee had set up a traffic signal close to his business office and claimed it under deduction under Section 37(1). The AO denied the say of the assessee describing that it had been not for the purpose of business. It has to be cared for as a donation and cannot be claimed as a deduction. But, based on the statements of the assessee that the traffic transmission would help its staff since it would help them to save lots of time and reduce tension. The Tribunal than granted the company a deduction under Section 37(1).

Mysore Kirloskar Ltd. vs Commissioner Of Income-Taxes on 8 September, 1986

In this case, the assessee acquired a plant in a remote location also to attract ideal talents it had designed a school for their kids and donated it to a trust. The assessee possessed claimed it as a deduction under Section 37(1) stating that it had been for the welfare of the business. The AO rejected the say stating that it can’t be claimed as an expenditure. In cases like this the amount was paid out to a trust which comes under Section 80G and the assessee can declare deduction under that. And in addition, only 61% college students were the kids of the assessee’s staff members and so it can be explained that it was not completely for the welfare of the business.

Commissioner Of Income Tax vs Rajasthan Spg. And Wvg. Mills Ltd. on 17 September, 2004

In this circumstance, the assessee had provided a bus to a school and claimed the expenditure as a deduction under Section 37(1), considering the fact that most of its employee’s children study in that school and the bus would gain them as the institution didn’t have enough buses. The AO rejected the promise of the assessee terming the expenditure as a donation to the institution and not for the welfare of the business enterprise. The Tribunal even so ruled in the favour of assessee predicated on the several old instances which allowed such deductions under Section 37(1).

Synopsis of Case Regulations:

In the case regulations studied above, it’s been made clear that ahead of the Companies Action, 2013 and the Finance Amendment Bill, 2014, the firms had been claiming any sort of donation beneath the Section 37(1). The AOs rejected the business’s claims but they had been randomly rejected by the Tribunals based on the number of old judgements. The brand new amendment has brought about clarity as to what can be claimed as a deduction under CSR and what not really can be.

by Margie M on December 21, 2017

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by Margie M on December 21, 2017

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