Key Takeaways From the 2021 CSR AMENDMENT RULES
CORPORATE SOCIAL RESPONSIBILITY UNDER THE COMPANIES ACT, 2013
For conducting its business activities, a company exploits various resources of society and the environment. Corporate Social Responsibility (CSR) is an act of incorporating social and environmental concerns into the business model of the company.
CSR has always been a topic of discussion in all forums. To achieve the intent of CSR policy, the Indian scenario called for a rethink of strategy. The amendments, being technical in nature, are a way to ensure strict compliance with the rules and to keep a tight check on the activities of companies. They are aimed at further improving the ease of doing business, decriminalizing non-compliance with CSR provisions as well as making the CSR framework more transparent. The provisions of the New Rules seem to be more detailed and structured even for the earlier mentioned concepts of CSR, CSR Policy, and CSR Implementation in the 2014 rules. Allowing companies engaged in research and development (R&D) activities for new COVID-19 vaccines, drugs and medical devices to include such activities in their normal course of business for inclusion in CSR activities is much appreciated. With the new rules, more responsibility has been cast on the shoulders of the Board to ensure proper implementation of legal norms related to CSR.
CSR is not a voluntary act on part of the company as it has been mandated by provisions of The Companies Act, 2013. According to Section 135 of the Act, every Company meeting the requisite criteria has to mandatorily set up a CSR Committee, formulate a CSR policy, and spend in every financial year at least 2% of the average net profits of the company made during the three immediately preceding financial years toward its CSR activities:
(i) Company having a net worth of Rs. 500 Cr or more, or
(ii) Company having turnover of Rs. 1000 Cr or more, or
(iii) Company having a net profit of Rs. 5 Cr or more during the immediately preceding financial year
The provisions of CSR would not be apply to a company where neither of the three criteria- the net worth nor turnover nor the net profit is being met by the company are being fulfilled.
KEY TAKEAWAYS FROM THE 2021 CSR AMENDMENT RULES
The Ministry of Corporate Affairs (MCA) has amended the Companies (Corporate Social Responsibility Policy) Rules, 2014 through a notification dated January 22, 2021, thus giving effect to the changes introduced in CSR by the Companies Amendment Acts of 2019 and 2020.
1. CHANGES IN THE DEFINITION CLAUSES MENTIONED IN RULE 2 OF THE COMPANIES (CORPORATE SOCIAL RESPONSIBILITY POLICY) AMENDMENT RULES, 2021
The incorporation of the definition of ‘Administrative overheads’ in Rule 2(1)(b) gives a clear understanding of the term which was not there in the previous rules. The term specifically means the expenses incurred for general management and administration of CSR functions in the company and explicitly excludes any expenses incurred for the designing, implementation, monitoring, and evaluation of a particular Corporate Social Responsibility project
Rule 2(1) (d) mentions the activities undertaken under the purview of Section 135 for Corporate Social Responsibility. However, six activities have been explicitly excluded to qualify as CSR activity. The abovementioned activities being activities undertaken in the normal course of business, the being activities benefitting the employees, undertaken outside India, contributing towards political party u/s 182, sponsorship activities which help the company in deriving marketing benefits, and carried out for fulfilling statutory obligation The main reason for such a definition is to have corporate think strategically and carefully while undertaking CSR activities rather than just pick and choose any activity mentioned under Schedule VII of the Companies Act, 2013.
With the inclusion of the definition of CSR policy in Rule 2(1) (f), Rule 6 stands omitted. CSR Policy is now defined as a statement containing the approach and direction given by the board of a company, taking into account the recommendations of its CSR Committee, and includes guiding principles for selection, implementation, and monitoring of activities as well as the formulation of the annual action plan. The rules are a pioneer in the development of a comprehensive CSR policy.
Rule 2(1) (g) introduces International Organization in the framework of India’s CSR. It allows corporate to take a call on the appointment of any outside organization for designing, monitoring, and evaluating their CSR projects and in assisting them with capacity building of their personnel under Rule 4(3) of New Rules.
The term Ongoing Projects has been defined in Rule 2(1)(i) to mean a multi-year project undertaken to fulfill CSR obligation stretching to a maximum duration of 4 years (three years excluding the year of commencement). As per the amendment in section 135, the unspent amount, if any, for ongoing projects, may be transferred to a separate bank account for three years and is not required to be transferred to the Fund specified in schedule VII as required in Section 135(5) of the Companies Act,2013. However, the uncertainty still remains for the projects whose implementation extends beyond 4 years span.
2. AMENDMENT IN CSR IMPLEMENTATION SCHEME UNDER RULE 4 CSR IMPLEMENTATION
For all projects effective from April 1, 2021, companies can undertake CSR activity only through implementing agencies that are registered with the Central Government. For registration, a form CSR-1 has to be led electronically after which a unique CSR Registration Number shall be generated. The template of e-form is present in the rules. In this way, a list of all such participating entities is maintained by the MCA which increases the chances of timely fulfillment of proposed activities. The amendment also states the entities which can apply for registration. The mentioning of public trusts and registered societies in section 8 for implementation of CSR policy will usher a way for companies to have access to various entities for carrying out their CSR obligations.
• AMENDMENT IN ROLE OF CSR COMMITTEE UNDER RULE 5 CSR COMMITTEES
Now the CSR committee is required to formulate and recommend to the Board a detailed action plan covering entire CSR policies and projects to be undertaken by the company. The detailed mention of the inclusions in the action plan removes the vagueness of Rule 5 in earlier CSR Rules, 2014 which only said about the institution of a transparent monitoring mechanism for implementation of the CSR projects or programs or activities undertaken by the company.
3. AMENDMENT IN CSR EXPENDITURE UNDER RULE 7 CSR EXPENDITURE
It is now the responsibility of the Board to ensure that administrative overheads about CSR do not exceed five percent of the total CSR expenditure of the company. Also, the surplus from any project can’t be titled as business profit and has to be utilized for any CSR project. Thus, as per the new rules if the company fails to spend the earmarked two percent of net profits towards CSR, it will have to specify the reasons for not spending the amount and, unless the unspent amount relates to any ongoing project, transfer it to a government notified fund.
4. AMENDMENT IN CSR REPORTING UNDER RULE 8 CSR REPORTING
The amended rules require that any corporation with a CSR obligation of Rs 10 Cr. or more for the three preceding financial years would be required to hire an independent agency to conduct impact assessment of all of their projects with outlays of Rs 1 Cr. or more. Companies will be allowed to count 5% of the CSR expenditure for the year up to Rs 50 lakh on impact assessment towards CSR expenditure.
5. AMENDMENT IN DISPLAY OF CSR ACTIVITIES ON WEBSITE UNDER RULE 9 DISPLAY OF CSR ACTIVITIES ON WEBSITE
Mandatory disclosure of CSR projects approved by the Board is to be placed on the website of the company. This will ensure greater accountability of companies and a closer check on the compliance of rules.
6. AMENDMENT IN TRANSFER OF UNSPENT AMOUNT UNDER RULE 10 TRANSFER OF UNSPENT CSR AMOUNT
Since the provisions are applicable from January 22, 2021, any amount that remains unspent on an ongoing project in FY 2020-21 will have to be transferred to any separate account already mentioned under Schedule VII till “the Fund” referred to in Section 135(5) and 135(6) of Companies Act, 2013 is created or specified.
The Companies (CSR Policy) Amendment Rules 2021 have overhauled India’s CSR regime. Besides giving effect to changes introduced in Section 135 of Companies Act, as a result of the Companies Amendment Act of 2019 (regarding the transfer of unspent CSR amount) and Companies Amendment Act 2020 (regarding setting off of excess CSR expenditure), the New Rules have introduced new requirements like impact assessment of CSR contributions, engagement of International Organisations for CSR Projects in a limited capacity etc. Even for the concepts earlier present in the 2014 Rules, such as the meaning of CSR, CSR Policy, CSR Implementation, the provisions of the New Rules appear to be more detailed and structured.
This is appreciated as it has in effect reduced the excessive discretion in the hands of a company, enhanced clarity, and introduced some uniformity by laying down the procedures to be followed in certain respects. Some provisions are still a bit vague, like Rule 10 of the New Rules talking about the transfer of unspent CSR amount to funds already mentioned in Schedule VII while not addressing the question of setting up a new Fund for the purposes of Section 135(5) and 135(6) of the Companies Act as was discussed in the Draft Rules of 2020. Concerns have also been raised regarding the five percent cap on administrative overheads under the New Rules and companies might find it difficult to abide by such provisions. Considering the overall scheme and the underlying intention, the New Rules paint a promising picture for India’s CSR regime.
DISCLAIMER- This write-up is based on the understanding and interpretation of the author and the same is not intended to be professional advice.
This Article is written by Shubham Katyal. He can be reached at [email protected]