Newly enacted CSR law is not applicable to all companies. Sub – Section (1) of Section 135 is applicable to all companies; subject to limitation based on its net worth, turnover and net profit. These threshold limits are:
- Net worth rupees five hundred crore or more (Rs. 500,00,00,000/-) or rupees five arab
- Turnover rupees one thousand crore or more (Rs. 10,00,00,00,000/-) or rupees ten arab
- Net Profit rupees five crore of more (Rs. 5,00,00,000/-)
Plain reading of this provision make it clear that provision of this section are applicable only to above mentioned companies. The Section does not make difference between private or private companies. The term “company” according to clause (20) of Section 2 means a company incorporated under this Act or under any previous company law.
The Companies (Corporate Social Responsibility Policy) Rules 2014 not only applies to a company under clause (20) of Section 2 of the Act but also include foreign company defined under clause (42) of Section 2 for the purpose of CSR. However, there is no difference in case of monetary criteria.
According to the Rule 3, every company including its holding or subsidiary, and a foreign company having its branch office or project office in India, which fulfils the criteria specified in sub – section (1) of the Section 135 of the Act shall comply with the provision of the Section 135 of the Act and these Rules.
Intention of inclusion of holding and subsidiary is seems to be just for application purpose. I suppose, Group holding company should lead CSR initiatives of the group and harmonise CSR policies across group.
The term ‘net worth’ as defined in clause (57) of Section 2 means the aggregate value of the paid-up share capital and all reserves created out of the profits and securities premium account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write-back of depreciation and amalgamation.
The term ‘turnover’ as defined in clause (91) of Section 2 means the aggregate value of the realisation of amount made from the sale, supply or distribution of goods or on account of services rendered, or both, by the company during a financial year.
There is no definition of net profit under the Act. The rules define the net profit for the purpose of CSR related calculations. Net profit under these rules 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:
(i) Any profit arising from any overseas branch or branches of the company, whether operated as a separate company or otherwise; and
(ii) An dividend received from other companies in India, which are covered under and complying with the provision of Section 135 of the Act.
Net profit in respect of a financial year for which the relevant financial statement were prepared in accordance with the provisions of the companies Act, 1956 shall not be required to be re – calculated in accordance with the provision of the Companies Act, 2013.
This is clear from this definition that “Net profit for CSR” is to be calculated form “net profit” of the company as calculated as pet the provision of the Act. Explanation to sub – section (5) of 135 hints that “average net profit” shall be calculated in accordance with the provisions of Section 198. Section 198 provide for a manner to calculate net profit. For the purpose of threshold limit of applicability of CSR Law, we may take help of Section 198.
Net profit for CSR shall be calculated from the net profit calculated as per section 198.
In case of foreign company; proviso to sub – rule (1) of Rule 3 say; 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 prepared in accordance with the provisions of clause (a) of sub – section (1) of Section 381 and Section 198 of the Act.
Out of CSR net:
Section 135 is silent regarding ceasing of applicability of the CSR law on a company which cease to fulfil the criteria set out in sub – section (1). The rules give a help to come out of CSR net. Every company which ceases to be a company covered under sub – section (1) of section 135 of the Act for three consecutive financial years shall not be required to –
(a) Constitute a CSR Coommittee; and
(b) Comply with the provisions contained in sub – section (2) to (5) of the said section,
Till the time it meets the criteria specified in sub – section (1) of section 135.
Reference Period for Applicability Criteria:
Plain reading of Section 135(1) denote that a company which fulfil the criteria under the sub – section during any financial year of its life time shall be subject to the CSR Law.
Rule 3(2) as discussed above offer some relief. Section 135(1) read with rule 3(2) denote where a company has fulfilled any of these three criteria during any of last three consecutive financial years should comply with CSR law.
When the CSR law come into force on 1st April 2014, we have to check financial statements of financial years 2011 – 12; 2012 – 13 and 2013 – 14 shall be relevant. This may be a very complex decision for companies which may fall under CSR criteria first time in year 2013 – 14. These companies may form CSR committee and keep policy ready and defer implementation once audited financials are ready.
Please note: I welcome your comments and feedback. This blog post is not a professional advice. Readers may share this post on social media by using buttons given here.
with the plain reading of section 135 we get that the average net profits are to calculated as per section 198 which is contrary to what the rules say that the profits be calculated as per financials in accordance of law.
now if you can deduce the way out how will CSR expenditure be calculated for F.Y. 2014-15..?
Contradictions are beauty of Indian Law.
I know that the rules have also a line that says we need not recompute the profits in accordance with CA,2013 if we have done it according to CA,1956 but don’t you feel the rules and act are giving a contradictory view….
And even when the section 198 will be notified and come in role after say year 2017-18 it will be harsh on the companies because that would entail a heavy expenditure then after re computing according to 198
Sir, Plz let me know if we consider Financial Year 2011-12, 2012-13, 2013-14, all these financial have been prepared in accordance with Companies Act, 1956 and Financial Statement of 2013-14, still not adopted by the shareholders, that means the profit of this profit of this Financial Year
will be computed in accordance with Companies Act, 2013….?? and thereafter get it approved from the shareholders…
and secondly rules says that if once the profit have been calculated in accordance with Companies Act, 1956, and audited, then need not be re-computed according to the Companies Act, 2013.
And section 135 says average net profit will have to be calculated in accordance of section 198, that we will have to compute once again the average of Net profit in accordance with section 198 of the companies act, 2013.
Rules want computation simple without re-computation.
We do not need to re-compute net profit in financial statements of financial years 2011 – 12; 2012 – 13 and 2013 – 14 which is/was/will be calculated according to the Companies Act, 1956.
This is transition provision.
What Section 135 say is actual provision but Rules try to make transition smooth.
Even though, I am strongly against any dilution of provision of Act through Rules but I do not think legislature proposes/supports any hardship to stakeholders. Hence the Rule.
Sir, does it means that we do not need to recalculate profit as per Sec. 198 0f CA,2013 For the calculation of Amount to be incurred in CSR activities ???
if company has net profits above 5 crores in 2011-12, 2012-13 and 2013-14 are required to constitute CSR or after checking the financial for 2014-15. since Act says financial statements prepared under the Act which means Companies Act, 2013. We can ascertain profits only after March 2015. pl. provide your opinion.
Thank you for visiting my blog.
Please read this post and all other comments here. I have shared my opinion.
Sir, Please clarify why we need to check the last three years financials and not only the Financials immediately preceding April 1, 2014, as the three year finacials are required only for computation of the 2% spending which is an average of the last 3 years profits. My company’s FY is Jan- Dec every year. We have not yet compiled the Figures for Dec 31,2013 but in Dec 2012 we have crossed the profits of 5 crores. Does that mean we have to comply with the provisions of CSR immediately?
You may have some provisional figure. It is easy to start early.
Can u please tell me that, if there is foreign subsidiary company of Indian holding company, with no presence in India and it is incorporated outside India, do than also foreign company who is having no presence and is incorporated outside India have to comply with CSR provisions. Please reply . urgent
Section was applicable from FY 14-15 , as profit for FY 12-13 exceeds 5 crore.. But if in case, the Company has neither constituted the committee nor made any disclosure in its Director Report. What steps Company can take now ?
You pls provide your suggestion/view for this Companies.
Pingback: Index of Companies Law Posts | AishMGhrana