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Published by Enhelion, 2019-11-21 09:31:34

Module 7

Module 7

MODULE 7

CORPORATE SOCIAL RESPONSIBILITY

7.1. INTRODUCTION

Corporate Social Responsibility is a form of self-regulation that is applicable to companies’
business models. Its self-regulatory nature allows for a company to be socially accountable to
itself, its stakeholders and the public at large, including the environment (both ecological and
social). Companies can fulfill this responsibility through waste and pollution reduction
processes, by contributing educational and social programs, by being environmentally friendly
and by undertaking activities of similar nature. 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. The fact of the matter is that most of the capital required by corporate – both long-
term and medium-term is provided by the banking/financial system, which is operated out of the
public funds. Therefore, if corporate are mandated to undertake CSR, it is very fair and logical
and a natural corollary of the nature of capital invested in them. It need not be over-stated that
the corporate owe it to the people and the society to pay them back in terms of social services
and by building social capital for common good.

The Companies Act 2013 regulates the Corporate Social Responsibility obligations of companies
and corporations through Section 135 [Chapter IX], the VIIth Schedule, and the Companies
(Corporate Social Responsibility) Rules 2014 which lay down mandatory provisions as to how
CSR obligations are supposed to fulfilled.1

What is really interesting in this regard is that there were no corresponding provisions for
Corporate Social Responsibility in the older Act from 1956. Owing to the fact that is a fairly new
addition to the Act, having been enforced in 2014, the Notes on Clauses in the Bill from 2011

1 Ministry of Corporate Affairs and Ministry of Heavy Industries and Public Enterprises (Dept. of Public
Enterprises), Corporate Social Responsibility in Select Central Public Sector Undertakings (CPSUs), 8th Report

2015-16 <available at:

http://164.100.47.193/lsscommittee/Public%20Undertakings/16_Public_Undertakings_8.pdf>

(when it was introduced for legislative deliberation) will provide significant insight and guidance
for those seeking to interpret this clause and its underlying obligations.2

7.2. The Notes on Clause 135 in the Companies Bill 2011

The notes mention that this “new clause seeks to provide that every company having specified
net worth or turnover or net profit during any financial year shall constitute the Corporate
Social Responsibility Committee of the Board. The composition of the committee shall be
included in the Board’s Report. The Committee shall formulate policy including the activities
specified in Schedule VII. The Board shall disclose the content of policy in its report and place
on website, if any of the company. The clause further provides that the Board shall endeavour to
ensure that atleast two per cent of average net profits of the company made during three
immediately preceding financial years shall be spent on such policy every year. If the company
fails to spend such amount the Board shall give in its report the reasons for not spending. India
is perhaps the first country to statutorily require companies to undertake Corporate Social
Responsibility (CSR). The provisions in s. 135 are to be read with Companies (Corporate Social
Responsibility Policy) Rules 2014 (CSR rules). The Companies Bill 2009 as introduced in Lok
Sabha on 3 August 2009 did not contain CSR related provisions”.3

The 1956 Act did not have a similar provision. This provision was only during the review of the
Companies Bill, 2009, was proposed by the Standing Committee on Finance and was accepted
by the Ministry of Corporate Affairs. The Report of the Standing Committee on Finance on the
Companies Bill, 2009, discussed the nature and scope of the provision for the first time. The
provision was introduced in the Companies Bill, 2011, following the recommendation of the
Standing Committee’s Report on the 2009 Bill, wherein concerns were raised on the extent of
CSR work being undertaken by companies.4

2 Taxmann, Corporate Social Responsibility <available at:
https://www.taxmann.com/emailer/images/pdf/Section%20135%20-%20Full.pdf>
3 The Ministry of Corporate Affairs (MCA), The Standing Committee Report on the Companies Bill 2011, 57th
Report (2011-12), p. 49 <available at:
http://www.prsindia.org/uploads/media/Company/Companies_Bill_%20SC%20Report%202012.pdf>
4 The Ministry of Corporate Affairs (MCA), The Standing Committee Report on the Companies Bill 2011, 57th
Report (2011-12), p. 49 <available at:
http://www.prsindia.org/uploads/media/Company/Companies_Bill_%20SC%20Report%202012.pdf>

7.3. What is the Definition of CSR?

Additionally, the Act does not define CSR. Some persuasive guidance may be obtained from
guidelines on CSR issued by Ministry of Corporate Affairs (MCA) and Ministry of Heavy
Industries & Public Enterprises as also Draft CSR rules which were published for public
comments in October 2013 prior to notification of final rules in February 2014. These guidelines
may serve as useful reference points while construing the scope of currently applicable statutory
provisions. However, these guidelines include provisions that make it clear that the guidelines
shall stand superseded as and when CSR provisions of 2013 Act are made enforceable.5

Section 135 of the 2013 Act has been subjected to extensive deliberations at the government and
industry level and was subsequently brought before a high-level committee constituted by the
Ministry of Corporate Affairs to suggest measures for improved monitoring of the
implementation of CSR policies.6

Clause 2 of Companies (CSR Policy) Rules, 2014 defines the term “CSR” to mean and include
but not limited to:

(i) projects or programs relating to activities specified in the Schedule, or
(ii) projects or programs relating to activities undertaken by the board in pursuance of

recommendations of the CSR Committee as per the declared CSR policy subject to
the condition that such policy covers subjects enumerated in the schedule.7

Proviso to sub-rule (b) of rule 6 excludes activities undertaken in pursuance of normal course of
business from the list of CSR activities.8

7.4. Applicability and Scope of the Section and the Rules

5 C R Datta, COMPANY LAW (7th Edn, 2014) p. 658
6 Mani Goswami, A Study on Implication of CSR Rules under Companies Act 2013, XVI Annual Conference

Proceedings 2015 <available at:

http://www.internationalconference.in/XVI_AIC/TS4_pdf/4.MANI%20GOSWAMI.pdf>
7 Rule 2, Companies (Corporate Social Responsibility) Rules, 2014
8 Rule 6 (b), Companies (Corporate Social Responsibility) Rules, 2014

The section applies to every company including its holding or subsidiary, and a foreign company
defined under s. 2(42) of the Act having its branch office or project office in India, which fulfils
anyone of the financial criteria set in s. 135(1), if such company, in any financial year has;

i. net worth of rupees five hundred crore or more, or
ii. turnover of rupees one thousand crore or more, or
iii. a net profit of rupees five crore or more.

The requirement applies irrespective of the nature of activities carried on by the company. For
example, companies rendering financial services or stock broking services will also need to
spend on CSR. Sub-section (1) requires the company meeting the above financial criteria to
constitute a Corporate Social Responsibility Committee of the Board consisting of three or more
directors, out of which at least one director shall be an independent director.9

a. Computing ‘Net Worth’

‘Net worth’ is defined under s. 2(57) and means the aggregate value of the paid up share capital
and all reserves created out of 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.10

b. Computing ‘Turnover’

‘Turnover’ is defined under s. 2(91) means the aggregate value of realization 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.11

c. Computing ‘Net Profit’

‘Net profit’ shall be calculated as per provisions of s. 198 of the 2013 Act for the purposes of s.
135. “Net Profit” has been defined in Rule 2(f) of the Companies (Corporate Social
Responsibility Policy), Rules, 2014 to mean the net profit of the company as per its financial

9 Section 135(1), The Companies Act 2013
10 Section 2(57), The Companies Act 2013
11 Section 2(91), The Companies Act 2013

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. any dividend received from other companies in India, which are covered under and
complying with provisions of s. 135 of the 2013 Act.

However, it also creates a ride 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 s.
381(1)(a) read with S. 198 of the Act.12

7.5. Corporate Social Responsibility Committee

Section 135’s clauses (1) and (2) read with the Rule 5 of the Companies (Corporate Social
Responsibility) Rules, 2014 outline the constitution and functioning of a CSR Committee.

The Corporate Social Responsibility Committee (CSR Committee) shall comprise of three or
more directors, out of which at least one director shall be an independent director. Foreign
companies shall constitute CSR committee with at least two persons one of whom shall be a
resident person who is authorized to accept notices/documents served on the foreign company13
and the other can be nominated by the foreign company.14

Unlisted public company or a private company, which otherwise does not require an independent
director on its board, shall not be required to any independent director for purposes of this
committee. Further, any private company which only has two directors on its board, shall have
said two directors in the CSR committee. Composition of the Corporate Social Responsibility
Committee is to be disclosed in the Report of the Board of Directors under requirements of
Section 134. Foreign company’s Indian balance sheet shall include an Annexure specified in
CSR rules regarding report on CSR.

12 Section 198, The Companies Act 2013
13 Section 380(1)(d), Companies Act 2013
14 Ravi Singhania, Primer on Corporate Social Responsibility under Section 135 of the Companies Act 2013

<available at:

http://www.mondaq.com/india/x/724326/Corporate+Commercial+Law/Handbook+For+The+Board+of+Directors>

Corporate Social Responsibility Committee has a multitude of functions with the provisions
stipulating that (i) it shall formulate and recommend to the Board, a Corporate Social
Responsibility Policy which shall indicate the activities to be undertaken by the company; (ii)
recommend the amount of expenditure to be incurred on the Corporate Social Responsibility
activities; (iii) to Institute a transparent monitor mechanism for implementation of the CSR
projects or programs or activities undertaken by the company; (iv) to monitor the CSR policy of
the company time to time; (v) To institute a transparent monitoring mechanism for
implementation of the CSR projects or programs or activities undertaken by the company [as per
rule 5(2)]. As mentioned above, rule 3(2) provides that in case a company ceases to be covered
under section 135(1) for three consecutive financial years, it shall not be required to constitute a
CSR Committee and comply with provisions thereof.

The company’s required activities are stipulated in Schedule VII of the Companies Act.
Activities included in Schedule VII can be revised through notification by the Ministry of
Corporate Affairs, and currently consist of:15

1. Eradicating hunger and poverty and malnutrition, promoting health care including
preventive healthcare and sanitation and making available safe drinking water;

2. Promoting of education including special education and employment enhancing vocation
skills especially among children, woman, elderly and the differently abled and livelihood
enhancement projects;

3. Promoting gender equality and 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, agroforestry, conservation of natural resources and maintaining of quality
of soil, air and water;

5. Protection of national heritage, art and culture including restoration of buildings and sites
of historical importance and works of art; setting up of public libraries; promotion and
development of traditional arts and handicrafts;

15 Schedule VII to the Companies Act 2013

6. Measures for the benefit of armed forces veterans, war widows and their dependents
7. Training to promote rural sports, nationally recognized sports, and Para-Olympic sports

and Olympic sports;
8. Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the

Central Government or the State Governments for socioeconomic development and relief
and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward
classes, minorities and women; and
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.

It is key to note that contributions to the Prime Minister’s Relief Fund is one of the CSR
activities specified in Schedule VII to the 2013 Act. The speciality of this CSR activity is that the
company can simply contribute money and be done with it. There is no need of monitoring the
spends like it may the case with Eradicating hunger, poverty and malnutrition, Promoting
preventive healthcare and sanitation, Making available safe drinking water etc. Besides there is
100% deduction of contribution under section 80G of the Income-tax Act,1961 that goes with it.
This is probably the one CSR activity in Schedule VII where tax treatment is clear. In view of
this, the question arises whether company can frame a CSR Policy to spend entire required
minimum CSR spend of 2% of annual net profit per financial year only on PMNRF. Answer to
the question appears to be a resounding “yes”. There appears to be no restriction on company
spending all its required CSR spend on any one activity specified in Schedule VII.16

7.6. CSR Activities – Rule 4 of the Companies (CSR) Rules 2014

Companies shall undertake CSR activities as per the CSR policy which shall exclude any
activities undertaken in pursuance of its normal course of business. This may have implications
for companies

CSR activities may be undertaken through a registered trust, registered society or a company
established by a company, or its holding or subsidiary or associate company. If such trust,

16 Taxmann, Corporate Social Responsibility <available at:
https://www.taxmann.com/emailer/images/pdf/Section%20135%20-%20Full.pdf>

society or company is 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, such trust/society/company must have an established
track record of three (3) years in undertaking similar programs or projects. For the purpose of
undertaking these projects or programs by such entities the Board shall also specify, the
modalities of utilization of funds on such projects and programs and the monitoring and
reporting mechanism.17

It is specified that “Registered Trust” shall include trusts registered under Income Tax Act 1961,
for states where the registration of a Trust is not mandatory. A company may also collaborate
with other companies for undertaking CSR projects or program or activities in such a manner
that the CSR committees of the respective companies are in a position to report separately on
such projects or programs. This means that in case of a holding and subsidiary company, though
they are required to constitute a CSR committee independently if they fall under the criteria of
section 135(1), they may collaborate for undertaking a CSR projects/programmes.18

As per rule 4, only expenses incurred on projects or programs or activities undertaken in India
shall be considered as CSR activity. The basic structure of the provision is to ensure inclusive
growth within the country. This rule restricts the corporate from undertaking CSR activities in a
foreign land, which means an Indian MNC doing CSR in Africa shall not be counted for CSR
under Indian laws.

Companies may also collaborate, however, they must be in a position to separately report
separately on the activities undertaken. Very importantly, the Rule specifies that CSR projects or
programs undertaken only in India shall qualify for the purposes of this section. Thus activities in
foreign countries, where an Indian company may have offices will not be considered for the
purposes of compliance with this section.

The company should focus its CSR activities in and around local area and areas where it operates
for conducting CSR activities for spending such amount. Companies may build CSR capacities

17 Nishith Desai Associates, Corporate Social Responsibility and Social Business Models in India <available at:
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Corporate_Social_Responsibility___Soci
al_Business_Models_in_India.pdf>
18 KSR and Co, Corporate Social Responsibility: Law and Practice <available at: http://ksrandco.in/wp-
content/uploads/2016/07/Copy-of-CSR-Booklet-Assochamconference-FINAL-10mar2015.pdf>

of their own personnel as well as those of their Implementing agencies. Such training may be
given through Institutions with established track record of at least three financial years but such
expenditure, including expenditure on administrative overheads shall not exceed 5% of total
CSR expenditure of the company in one financial year. An amount contributed directly or
indirectly by any company to a political party under section 182 of the Act shall not be
considered as CSR activity.

Contributions to a political party or amounts expended on programs or activities which only
benefit the employees of the company are not considered to be CSR activities. Companies may
partner with other institutions which have a track record of three years for building CSR
capacities of own employees. However, such expenditure cannot exceed 5% of the total
expenditure on CSR by a company in one financial year. MCA vide notification G.S.R 644(E)
dated 12 September 2014 has amended the Rule to state that the term “such expenditure”
includes expenditure on administrative overheads.19

7.7. CSR Policy – Section 135(4) of the Act

According to sub-section (4) of section 135, the board of every company which falls under the
criteria of sub-section (1) shall after taking into consideration the recommendations of the CSR
Committee approve the CSR Policy of the company and disclose its contents in its report and
also place it on the website of the company. The Rules further elaborated that the CSR Policy
shall include a list of CSR projects or programs which a company plans to undertake specifying
the modalities for execution of such projects or programs and implementation schedules for the
same. The CSR Policy must also contain the monitoring process of such projects or programs.
As per clause (e) of the rule 2, CSR Policy relates to the activities to be undertaken by the
company as specified under Schedule VII of the Act and expenditure thereon excluding the
activities undertaken in pursuance of normal course of business of a company.

The MCA clarification vide Circular 21/2014 specifies that the entries in the Schedule VII must
be interpreted liberally so as to capture the essence of the subjects enumerated in the said
Schedule. The clarification gives an illustrative list of the wide range of activities which may be
covered under the activities mentioned under Schedule VII of the Act.

19 Ibid

The board should therefore, ensure that the activities included in the CSR Policy are those related
to the activities mentioned in Schedule VII of the Act. Further, it must ensure that the activities
specified in the CSR Policy are carried out by the company. The CSR Policy shall specify the
surplus arising out of the CSR projects or programs or activities and shall not form part of the
business profit of a company.

Another doubt that several practitioners have is regarding the nature of the CSR obligations – is
an expenditure on CSR mandatory as per the legal provisions? The expression used in the section
is “shall ensure”. “Shall ensure” is explained in the dictionaries to mean “to secure; make sure,
To make sure, certain or safe” which does suggest that there is a mandate to spend 2% of
average net profits of last three years on CSR activity. The language of S. 135(5) was amended
specifically on standing committee’s advice to remove the words ‘make every endeavour to’ at
the stage of passing of the Bill in Lok Sabha.

Second Proviso of sub-section (5) requires the board to specify the reasons for not spending the
amount, where the company has failed to do so. Failure to spend does not make these provisions
voluntary. Dictionary meaning of failure is “the neglect or omission of expected or required
action”. Neither the Act nor the rules prescribe any penal provision if a company fails to spend
the amount. Also, there does not appear to be any explicit provision stating existing of any legal
obligation on companies to make good short spend of one year in the subsequent years. The
Framework for the Preparation and Presentation of Financial Statements defines the term
“expense” as: “Expenses are decreases in economic benefits during the accounting period in the
form of outflows or depletions of assets or incurrences of liabilities that result in decreases in
equity, other than those relating to distributions to equity participants.” CSR expenditure is an
item of expense for the company which needs to be charged to the statement of profit and loss.

Expenditure’ is equal to ‘expense’ and ‘expense’ is money laid out by calculation and intention
though in many uses of the word this element may not be present, as when one speaks of a joke
at another’s expense. But the idea of ‘spending’ in the sense of ‘paying out or away’ money is
the primary meaning which is relevant. ‘Expenditure’ is thus what is ‘paid out or away’ and is
something which has gone irretrievably.20 ‘Expenditure’ is not necessarily confined to the money

20 Indian Molasses Co (Pvt.) Ltd. v. CIT, [1959] 37 ITR 66 [LNIND 1959 SC 90]

which has been actually paid out. It covers a liability which has accrued or which has been
incurred although it may have to be discharged at a future date. However, a contingent liability
which may have to be discharged in future cannot be considered as expenditure. Although
expenditure primarily denotes the idea of spending or paying out, it may, in given circumstances,
also cover an amount of loss which has not gone out of the assessee’s pocket but which is all the
same, an amount which the assessee has had to give up. It also covers a liability which the
assessee has incurred in praesenti although it is payable in future. A contingent liability that may
arise in future is, however, not ‘expenditure’. It would also cover not just a one-time payment but
a liability spread out over a number of years.21

The ‘expenditure’ primarily denotes the idea of ‘spending’ or ‘paying out or away’. It is
something which has gone irretrievably, but should not be in respect of an unascertained liability
of the future. It must be an actual liability in praesenti, as opposed to contingent liability of the
future.22.

There is no legal obligation on a company to spend on CSR or cover for the shortfalls in the
spend in subsequent years. It may so happen that a company does not spend the requisite amount
as approved in its CSR policy, but discloses that it will cover the shortfalls in subsequent years,
thereby creating a constructive obligation for itself.

A provision for constructive obligation is required under the Indian-Accounting Standards (“Ind-
AS”), which is based on accounting principles under IFRS. An opinion of Expert Advisory
Committee of ICAI in The Chartered Accountant of July 2013 page 139, states “Since as per
Department of Public Enterprises (‘DPE’) Guidelines, there is no such obligation on the
enterprise, provision should not be recognised. Accordingly, the committee is of the view that
the requirement in the DPE Guidelines for creation of a CSR budget can be met through creation
of a reserve as an appropriation of profits rather than creating a provision as per Ind-AS 2923. On
the basis of the above, the committee is of the view that in the extant case, it is not appropriate to
recognise a provision in respect of unspent expenditure on CSR activities. However, a CSR
reserve may be created as an appropriation of profits.”

21 Madras Industrial Investment Corporation Ltd. v. CIT [1997] 91 Taxman 340/225 ITR 802 (SC)
22 Mysore Kirloskar Ltd. v. CIT [1987] 30 Taxman 467 (Kar.)
23 Indian Accounting Standards 29 (Ind-AS 29), Financial Reporting in Hyperinflationary Economies <available at:
http://www.mca.gov.in/Ministry/pdf/Ind_AS29.pdf>

Similarly, neither the Act nor CSR rules provide any guidance on whether a company can carry
forward the benefit of higher expenditure and use the same to spend lower amount in subsequent
years, although CSR policy of company could recommend and board of the company approve,
any higher expenditure than 2% of the average net profits.

7.8. CSR Rules and their Role

While the Rules have provided much more guidance on the implementation and
operationalization of the requirements of s. 135, there are certain areas, where the Rules have
also sought to over step the Act. These are areas, where the legality of these requirements,
prescribed through the rules, may be subject to legal challenge. Some of these areas are
discussed below:

1. Definition of net profit: ‘Net profit’ shall be calculated as per provisions of s. 198 of
Companies Act 2013 for the purposes of s. 135. “Net Profit” has been defined in Rule 2
to mean the net profit of the company as per its financial statement prepared in
accordance with the applicable provisions of the Act, but shall not include the following
namely,
a. any profit arising from any overseas branch or branches of the company, whether
operated as a separate company or otherwise; and
b. any dividend received from other companies in India, which are covered under
and complying with provisions of s. 135 of the Act

While this would provide relief to companies, and avoid any cascading effect of CSR spending
on upstreaming of dividends, the fact that the definitions of Net Profit under the Act and the
Rules are different could lead to implementation and interpretational issues.

2. Coverage of foreign companies: As per the Rules, foreign companies are required to
contribute to CSR based on the profits of their Indian business operations. This is a new
requirement introduced by the Rules, as the Act only required a company, meaning a
company incorporated under this Act or any of the previous Acts to contribute to CSR,
and therefore did not cover foreign companies.24

24 MCA, FAQs on CSR Cell <available at: http://www.mca.gov.in/MinistryV2/faq+on+csr+cell.html>

3. Private companies and certain unlisted public companies, which are otherwise not
required to have an independent director are exempt from the requirement of having an
independent director on their CSR committee. While this is a good development, and
provides relief to a lot of private companies who would have had to get independent
directors on their boards, it still goes against the requirements in S. 135, which requires
every company covered by the provisions of S. 135 to have a CSR Committee with an
independent director.25

4. Indian branches and project offices of foreign companies covered under CSR provisions:
Indian branches and project offices of foreign companies covered under CSR provisions.
This will also require such foreign companies to set up a CSR committee, etc. to comply
with these requirements. This is a new requirement introduced by Rule 3(1) of the
Companies (Corporate Social Responsibility Policy) Rules. 2014, as the Act only
required a company, meaning a company incorporated under this Act or any of the
previous Acts to contribute to CSR, and therefore did not cover Indian branches and
project offices foreign companies.26

7.9. Annual Report on CSR Activities

As per Clause (4) of the CSR Provision, the Board of Directors are required to ensure there is
included, within the Board’s Report, an Annual Report on its CSR Activities created according
to a specific format:27

1. 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.

2. The Composition of the CSR Committee.
3. Average net profit of the company for last three financial years
4. Prescribed CSR Expenditure (2% of the amount as in item 3 above)
5. Details of CSR spent during the financial year.

25 S P Wani and K V Raju, CORPORATE SOCIAL RESPONSIBILITY: WIN-WIN PROPOSITIONS FOR COMMUNITIES,
CORPORATES AND AGRICULTURE, CABI (2018)
26 Nishith Desai Associates, New rules for Corporate Social Responsibility announced <available at:
https://www.lexology.com/library/detail.aspx?g=522a58c1-095c-401b-8ad9-dc3b88b98c0a>
27 Section 135(4), The Companies Act 2013

a. Total amount to be spend for the financial year;
b. Amount unspent, if any;
c. Manner in which the amount spent during the financial year is detailed below.
6. In case the company has failed to spend the 2%, of the average net profit of the last three
financial years or any part thereof, the company shall provide the reasons for not
spending the amount in its Board report.
7. A responsibility statement of the CSR Committee that the implementation and
monitoring of CSR Policy, is in compliance with CSR objectives and policy of the
company.

7.10. CONTRAVENTION OF SECTION 135

There is no specific punishment provided for defaulting on CSR spends obligations. So such
defaults attracts punishment under section 450 titled “Punishment where no specific penalty or
punishment is provided”. Section 450 provides as under:

1. A company or any officer of a company or any other person contravenes:
a. any of the provisions of this Act or the rules made thereunder, or
b. any condition, limitation or restriction subject to which any approval, sanction,
consent, confirmation, recognition, direction or exemption in relation to any
matter has been accorded, given or granted.

2. No penalty or punishment is provided elsewhere in this Act for the contravention as
above.

3. If conditions (a) and (b) are satisfied, the company and every officer of the company who
is in default or such other person shall be punishable with a fine which may extend to Rs
10,000, and where the contravention is a continuing one, with a further fine which may
extend to Rs. 1,000 for every day after the first during which the contravention
continues.28

A question arises what if a company covered by section 135(1) does not make any CSR spends
at all or there is a shortfall in CSR spends? Does the Act empower the Central Govt. to
attach/confiscate company’s assets to recover the minimum annual CSR amount of 2% of

28 Section 450, The Companies Act 2013

ANP/the shortfall? There is no provision empowering the Central Government to take coercive
recovery steps to recover shortfall in CSR contributions from defaulting companies.29

29 Taxmann, Corporate Social Responsibility at p. 62 <available at:
https://www.taxmann.com/emailer/images/pdf/Section%20135%20-%20Full.pdf>


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