We bring to you, from our Knowledge Resource Center, FAQs on the Compliance to Sec 135 of Companies Act, 2013. Also to follow, FAQs on Execution -
1.
Which Companies are covered under
Section 135 of the Companies Act, 2013 to undertake CSR activities?
All companies fulfilling any one
of the following three criteria during any of the immediately preceding three
financial years (clarification issued by MCA on June 18, 2014) are required to
undertake CSR activities:
(1) Net Profit of INR 50 million or
more; or
(2) Net Worth of INR 5 billion or
more; or
(3) Turnover of INR 10 billion or
more.
2.
What is the first step for a
Company required to undertake CSR activities?
The Board of Directors of the
Company shall constitute a Corporate Social Responsibility Committee of the
Board.
3.
How many Directors should be there on the CSR Committee?
Public Company required to appoint
Independent Director
|
Minimum 3 directors out of which
minimum 1 shall be an independent director
|
Public Company not required to
appoint Independent Director
|
Minimum 3 directors
|
Private Companies with 3 or more
Directors
|
Minimum 3 directors
|
Private Company with 2 Directors
|
Both Directors
|
4.
What is the role of the Board of Directors in CSR?
·
Constitute CSR
committee
·
Approve the CSR
Policy
·
Ensure
implementation of the activities
·
Ensure that the company
spends, in every financial year, at least 2% of the average net profits made
during the three immediately preceding financial years, in India in pursuance
of its CSR Policy.
·
Specify reasons
for not spending such amount, if such amount not spent
·
Disclose CSR
policy, composition of CSR Committee and Annual Report on CSR in the Directors’
Report and publish it on the Company’s website
5.
What is the role of the CSR Committee?
·
Formulate and
recommend a CSR policy to the Board indicating the activities as specified in
Schedule VII of the Companies Act, 2013
·
Recommend the
amount of expenditure to be incurred on the activities indicated in the policy
·
Monitor the CSR
policy regularly
·
Institute a
transparent monitoring mechanism for implementation of the CSR projects or
programs or activities undertaken
·
Issue a
responsibility statement every year that implementation and monitoring is in
compliance with CSR objectives and Policy
6.
For compliance under Section 135 i.e. Corporate Social
Responsibility, from which financial Year CSR expenditure and reporting begins?
Every company which meets the threshold financial criteria is
required to comply with CSR requirements with effect from April 1, 2014.
Companies have to spend the amount on CSR activities as required by section 135
starting from FY 2014-15.
7.
How much money should be spent by
the Companies on CSR activities?
The company is required to spend,
in every financial year, at least 2% of the average net profits made during the
three immediately preceding financial years, in India in pursuance of its CSR
Policy.
8.
While calculating Net Profit as
per the Companies Act, 2013, for Section 135, what about the Net Profit
calculated as per the Companies Act, 1956 for any of the immediately three
preceding financial years?
It has been clarified in the
rules that Net Profit 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 Companies Act, 2013.
9.
What should be the contents of CSR Policy?
CSR Policy of the Company shall contain the following:
·
List of CSR
projects or programs which a company plans to undertake falling within the
purview of the Schedule VII
·
Modalities of
execution of such project or programs
·
Implementation
schedules for the same
·
Mechanism for
monitoring process of such projects or programs
·
Statement that
the surplus arising out of the CSR projects or programs or activities shall not
form part of the business profit.
10.
What should be the content of
Annual Report on CSR to form part of the Directors’ Report?
• Brief outline of the CSR policy including
overview of projects with a reference to the web-link to the CSR policy and projects
• Composition of the CSR Committee
• Average net profit of the company for last
three financial years
• Prescribed CSR expenditure (2% of Average net
profit as above)
• Total amount to be spent for the financial
year
• Amount unspent, if any
• Activity-wise details of the amount spent
during the financial year (Sector / Location / Budget / Direct expenditure /
Overheads / Cumulative expenditure / Breakup of amount spent directly and
through implementation agency)
• If the prescribed CSR expenditure is not
fully spent, reasons thereof
• Responsibility statement of the CSR Committee
that the implementation and monitoring is in compliance with CSR objectives and
Policy
This Annual Report shall be
signed by Chairman of CSR Committee and CEO / MD / Director.
11.
What is the time limit for CSR
spending and reporting?
As per Section 135(5), the Board
shall ensure that the company spends, in every financial year, at least 2% of
the average net profits of the company made during the 3 immediately preceding financial
years, in pursuance of its CSR policy in India. This implies that the Companies
which meet the threshold financial criteria under Section 135 would be required
to spend at least 2% in the financial year 2014-15 i.e. up to March 31, 2015.
Further, the reporting has to be done by the Board in its Report for the
financial year 2014-15.
12.
Are there any penal provisions in
case a Company does not spend the required amount in CSR activities in any
financial year?
The provisions are currently
based on “Apply or Explain” principle. Even if the Company, meeting the
financial threshold criteria, is not able to spend the required amount or not
required to spend due to negative average net profit, it is still required to
follow all disclosure requirements.
If the Committee or Board fails
in its duties, the Company is punishable with fine which shall not be less than
Rs. 50,000 but which may extend to Rs. 25,00,000 and every officer of the
company who is in default shall be punishable with imprisonment for a term
which may extend to 3 years or with fine which shall not be less than Rs.
50,000 but which may extend to Rs. 5,00,000, or with both.
13.
Whether CSR expenditure done by
Foreign Holding Company will constitute as CSR expenditure for Indian
Subsidiary Company assuming that Indian Subsidiary is required to comply with
CSR provisions?
As per clarifications issued by
MCA on June 18, 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 spend as per Section 135. However the reporting and
compliance of CSR provisions has to be done by the Indian Subsidiary.
14.
If the Company fulfils turnover criteria but the Company is
incurring loss since last 5 years?
The provisions of Section 135 will still be applicable. However,
the 2% of the average net profit in the instant case will be negative, and
hence the Company is not required to spend any amount on CSR in the current
year.
15. Whether a PE of a
foreign company or a foreign company doing business through its agents and
paying taxes in India for income accrued/received in India would be considered
as a foreign company for the purpose of CSR?
As per Section 2(42) of Companies Act, 2013, a foreign company
means any company or body corporate
incorporated outside India which has a place of business in India
whether by itself or through an agent, physically or through electronic mode
and conducts any business activity in India in any other manner.
Neither Section 135 nor sections 379 to 393 dealing with foreign
companies nor the Foreign Companies Rules refer to applicability of the CSR
requirements to foreign companies.
However, in terms of Rule 3(1) of the Companies (Corporate Social
Responsibility Policy) Rules, 2013, a foreign company having its office or
project office in India which fulfils the criteria specified in Section 135(1)
is required to comply with the provisions of Section 135 of the Act and the
rules there-under. Therefore, foreign company having its branch office or
project office in India which fulfils the criteria specified under Section
135(1) is required to comply with the provisions of Section 135.
The net worth, turnover or net profit of a foreign company is to
be computed in accordance with the balance sheet and profit and loss account of
the foreign company prepared with respect to its Indian business operations in
accordance with Schedule III or as near thereto as may be possible for each
financial year.
CSR Committee of such foreign company will comprise of at least
two persons of which one person shall be as specified under clause (d) of
sub-section (1) of section 380 of the Act (AR) and another person shall be
nominated by the foreign company. It is to be noted that these individuals need
not be Directors of the foreign company.
The Annual Report on CSR needs to be signed by AR. The Balance
Sheet filed under Section 381(1)(b) shall contain an Annexure regarding report
on CSR.
16.
When CSR provisions cease to be
applicable to a Company?
A Company which ceases to be
covered under the threshold criteria (net profit/ turnover/ net worth) for 3
consecutive financial years shall not be required to comply with CSR provisions
till such time it meets the threshold criteria.
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