Saturday, 12 November 2016

A letter to Sri Arvind Kejriwal

An Open letter
To
Shri Arvind Kejriwal
The Chief Minister
NCT of Delhi

By a Citizen

Sir,

I was very excited to see your comment on dicision of PM Modi to ban 500 and 1000 notes from circulation. Finally your comment came and I was surprised to see the logic used by you while criticising the move of our PM.
I was expecting that you would appreciate this move
Of Demonetization of Currency as a tools to control black money and corruption  because your very entry into Politics was for supporting any small move to reduce Black money and Corruption and after all, this was indeed a very big and bold move but once again you run booldrozer on my expectation.
to explain the probable Logic behind issuing New 2000 Rupee Note instead of 1000 Rupee Note I would like to bring to your knowledge the following Points.

Point 1

As you have stated in your Video that it took full 2 days for you to understand the various aspects of the Scheme and even after consultation with various Experts , you could not basically understand the Logic of why 2000 Rupee Notes were released instead of 1000 Rupee Note, on the basis of concept of demonetisation which I read in class 12th economics I would like to make an attempt to tender my best possible logic ( Please enlighten me if I am wrong somewhere) as follows:

Sir, let us Simply take 2 Scenarios to understand the funda !

Scenario A : If as per your suggestion ,  Rs. 2000 Note are not issued but only New Rs. 1000 Notes are issued.

Lets say , for example Mr. X has Rs. 1,00,000/- black money in 100 Old Notes of Rs. 1000 each.

Mr. X divides those Rs. 1,00,000/- into 10 Equal Bundles, each comprising of 10 Old Notes of Rs. 1000 each and puts each Stack on a Table.
On Day 1 , in the morning Mr. X would deposit the first Bundle i.e. 10 Old Notes of Rs. 1000 valued at Rs. 10,000 into the bank and on same Day 1 in the Evening he would withdraw 10 New Notes of Rs. 1000 again valued at Rs. 10,000 and put it in the Locker in his house.

Now the real Game starts.
On Day 2 : Morning , Mr. X would deposit the second bundle of 10 Old Notes of Rs. 1000 valued at Rs. 10,000 kept on the Table. However in his books of accounts submitted to Income Tax Department, he will show that he has deposited the same 10 New Notes which was withdrawn on Day 1 : Evening ( which is actually still lying in the Locker of House )

On Day 2 : Evening , Mr. X would again withdraw 10 New Notes of Rs. 1000 valued at Rs. 10,000/- and keep the same in Locker . So at the end of Day 2, Mr. X has Rs. 80,000 on Table in Old Notes and Rs. 20,000/- in New Notes in Locker.

Now Day 3 will come in next week as limit of Rs. 20000 per week.

The same exercise shall continue till Day 10 and by the end of Day 10, Mr. X shall have no Old Notes and Rs. 1,00,000 in 100 New 1000 Rupee Note in the Locker.

However, to the Income Tax Department, Mr. X has shown that he was having only Rs. 10,000/- as black money initially ( i.e. one bundle of 10 Notes of Rs. 1000 ) and he has rotated the same Rs. 10,000/- by depositing it into Bank account in the morning and withdrawing it in the evening and again redepositing the same on next day and so on.

Thus, Mr. X has paid tax only on initial Rs. 10,000 whereas he has managed to convert all his Black money of Rs. 1,00,000 into new Notes.
This Modus operandi is called Peak theory i.e. theory of rotation of same money which is accepted by most of the High Courts and Tribunals.  Revenue is also helpless to catch Mr. X because the above scenario can also occur in genuine cases where you withdraw money from bank to purchase something and then when you think that no good deal is available, you may again deposit the same money into your bank account and are not required to pay tax again.

Scenario B :  Watch what happens when PM issues New 2000 Rupee Note instead of 1000….!
Mr. X deposits first bundle of 10 Old Notes lying on Table in the Bank on Day 1 : Morning and then he withdraws 5 New Notes of Rs. 2000 on Day 1: Evening and keeps it in locker.
Now on Day 2 : Morning when he goes to deposit second bundle of 10 Old Notes of Rs. 1000 each and wrongly shows the Income Tax Department that he has redeposited the same money which was withdrawn on Day 1:Evening – Bingo !!!

He is caught red handed !! because the Bank slip on Day 2 submitted to bank shows deposition of 10 Notes of Rs. 1000 each whereas the Govt knows that Mr. X could never have withdrawn on Day 1 any note of Rs. 1000 because they were never Printed !!!!
Now Isn’t it really a Master Stroke by Mr. Narendra Modi, the beloved Prime Minister of our country ?!

Sir, you have stated in the Video that if Someone gives you the logic of issuing New notes of Rs. 2000 instead of Rs. 1000, you will Salute the PM and support him in his endeavour. I hope this explanations finds you in good health and I am waiting for the support in full sense.

Even if the above explanation is not completely true, we should rely on and respect the PM of our country who is elected through clear democratic majority.

Further, the fact that when someone is holding the new Rs. 2000 Rupee Note , he is phychologicaly getting a sense of freshness that the country is in the growth phase. Messages are being circulated not to write anything on New Notes. Imagine if the Govternment would have never issued new higher denominations notes with inflation and growth we would still be dealing with Annas and Pavlis!!

Sir, the above example also gives you an explanation as to why the withdrawal limit is kept so low because the above modus operandi can still be done with Rs. 500 note however, the incentive would be less because Mr. X cannot withdraw more than Rs. 10000/- in a day and even if he withdraws Rs. 10,000/-, there is every possibility that Banks shall give Mr. X,  2000 Rupee note. So Mr. X cannot follow the above modus operandi.

And believe me Sir, each and every condition in the Notification is seen to take care of the problems likely to be faced by Citizens and at the same time making sure that such Sophisticated theories are not resorted to by Black money hoarders, but questioning everything in the name of Freedom of Expression may create Panic situations or bring out Loopholes and hamper the success of reforms.

Point 2

Sir, you have again criticised and stated in the Video that printing Rs. 2000 rupee note will help to increase Corruption because Stacking those Rs. 2000 Rupee Notes would require lesser Space as compared to Stacking Rs. 1000 Notes.

In this regard, I would like to ask that Sir, have you come across any case where the “Babus” have not taken any bribe and done work honestly because they had a small Bag which could not be fitted with Rs 1000 Notes ?!

Or have you come across any Businessman who has declared unaccounted money solely because there was no space to keep those Rs. 1000 Notes !!

Point 3

As stated in the Video by you, it is true that inspite of PM efforts, there shall be dubious commission agents and unaccounted Investment in gold through jewellers, but as far as I remember when the jewellers were on strike for 45 days when our PM levied excise duty on gold in month of April 2016, it was you who supported their strike. It shows that whenever some changes are suggested to regulate a particular Market, AAP opposes them and then now you nag that the Gold market is unregulated.

Infact I believe that the PM had a full blue print for the development of our country right from Day 1 of his being elected if I recall my last 3 years as a Professional.

Firstly they asked for all the bank account number in your Return of Income

Then they linked your PAN with Aadhar

They linked all the subsidies, pension and other benefits directly to your bank account through Direct Benefit Transfer Scheme.

Then they gave opportunity to all the common men to open an account with bank through Jan Dhan Yojna
Government has linked MCA Portal with Income tax, one window solution for all registration of corporate affairs, linking of PAN and DIN.

They entered into revised treaty with most of the countries in which unaccounted money goes through HAWALA e.g. Mauritius and thus the route of Black Money coming from Mauritius which everyone knew is stopped.

They passed few strict laws to overcome the evil of black money such as Benami Transaction Act and Foreign Black Money Act

They levied Excise duty on Gold.

They also made TCS compulsory for Cash transactions above 2 lakhs.

They withdrew lakhs of pending income tax and service tax litigations where Common men had won at Appeal level and Department had gone further.

They also entered into information exchange agreement with such countries.

Then they gave last opportunity to all black money hoarders through Income Declaration Scheme, 2016

Now they have a Scheme for Dispute Resolution Panel again to reduce Litigation till December 2016.

Now the masterstroke, that they have banned Rs. 500 &  Rs. 1000 denominations.

Not only the destination of this whole process is commendable but even the journey or the chronology of these events is interesting which explains the ultimate destination and who knows , may be the journey is still not over and the ultimate destination may still be the Swiss Account holders!!

Point 4

Further, you have stated in your Video that penalty would be levied at the rate of 200%. The said statement has created a panic and people have stated discounting their own hard earned cash.

Being in Income tax Department in the past , you ought to know that as per the present Income Tax Act,1961 penalty is never levied on Cash deposits but on “concealed income”. Hence when the common men is depositing Cash in hand which is duly accounted or out of his past savings and even out of unaccounted current years income whose return is yet to be filed, there shall not be any penalty if there is no mismatch between returned income and assessed income. Even the Government Officials in their statement used the words “underreporting” or “mismatch”. To understand the definition of  “underreporting”, Sir please refer Section 270A of the Income Tax Act or go through the following article:

NO PENALTY ON HIGH DENOMINATIONS NOTES DEPOSITED INTO BANK IF SUCH AMOUNT IS DECLARED IN RETURN OF INCOME BY PAYING APPROPRIATE TAX

Instead you could have encouraged the citizens to pay appropriate Tax.

Point 5

Nowhere in the Video have you stated anything relating to Fake currency or Counterfeit Notes because you know that the issue of Existing Fake Currency is solved foolproof.

Which situation would be better ?

Scenario A:

A Labourer standing in queue to exchange Notes from bank for a Short term.

Scenario B :

A Labourer working hard whole day to get a Fake Note at the end of the day?!

The issue of Terrorrist Funding is also tackled but you chose to remain silent on the same.

You have stated that Modiji should have infused Rs 100 Note from before and it would have been you only to have said in this video that “Arre ATM se do din pehle se hi Sirf Rs. 100 ki Note bahar aa rahi thi toh sab ko pata tha , yek koi Secret nahi tha”

Conclusion

Now Sir,  if I am to believe that you really don’t understand these simple concepts even after consulting with Experts for 2 days as already described by you, I am deeply saddened because the common men believe that you are an IITian and have spent considerable time in Income Tax Department also.

Contrary to the same, If I am to believe that you already know the benefits of demonetization which I first learnt in my class 12th in economics and the concept of Peak Theory which is described by me above and which I learnt with my very limited experience while pursuing my profession of company secretary. then I am more saddened and feel AAP Party as more dangerous because I believe that above any religion, politics or reservations in any caste or creed, it will always be education which shall uplift the common men and it is the common men who have elevated you to a position where you are looked by millions as their Idol and it is your duty to educate them and spread knowledge and not keep them in ignorance to preserve your vote bank.

Jai Hind.

Ravi Bhushan Kumar
Company Secretary
9990339200

Sunday, 18 October 2015

Case Study on CSR under Companies Act 2013

Case Study of CSR Provision of Companies Act 2013
Section 135 of the Companies Act, 2013 and Rules in this regard have been notified and shall be applicable w.e.f  01.04.2014.
Section 135 (1) provides that every company having net worth of Rs. 500 crore or more or turnover of Rs. 1000 crore or more or net profit of Rs. 5 crore or more during any financial year shall constitute a CSR Committee. Section 135 (5) further provides that the Company shall ensure to spend 2% of the average net profits of the Company made during the three immediately preceding financial year. The Explanation to this subsection provides that the average net profit shall be calculated in accordance with the provisions of section 198 of the Companies Act, 2013.
The CSR Rules defines Net Profit as under:
 Net Profit means the net profit of a Company as per its financial statement prepared in accordance with the applicable provisions of the Companies Act, 2013, but shall not include the following, namely:
  1. Any profit arising from any overseas branch or branches of the Company, whether operated as a separate company or otherwise, and
  2. Any dividend received from other companies in India, which are covered under and complying with the provisions of section 135 of the Companies Act, 2013;
 Provided 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, (1 of 1956) shall not be required to be re-calculated in accordance with the provisions of the Companies Act, 2013.
 However section 198(4)(l)provides as follows:
the excess of expenditure over income, which had arisen in computing the net profits in accordance with this section in any year which begins at or after the commencement of this Act, in so far as such excess has not been deducted in any subsequent year preceding the year in respect of which the net profits have to be ascertained;
Interpretation of the above strictly provides to deduct the loss which occurred at or after the commencement of the Companies Act, 2013 viz. financial year starting on or after 1st April, 2014. However, pursuant to provisions of Section 135 of the Act, the Company have to spent at least two percent of the average net profits of the Company made during the three immediately preceding financial years, which we assumes for CSR spending in the financial year 2014-15 the Company has to work out average net profits for the financial years 2011-12, 2012-13 and 2013-14.
 It seems that there prevails some ambiguity in the section itself as it provides  for set off of only those losses that occur only after the commencement of the Companies Act, 2013 and not earlier ones, whereas at the same time the profits to be considered is of immediately preceding three financial years. In all fairness, profits and losses, both, for the preceding three years and accumulated losses of earlier years should be considered for arriving at the average Net Profit as we feel that profits and losses are part and parcel of any business and one cannot discriminate between the same.
 The said clause is debatable in the absence of any clarification or circular from Ministry in the matter.and considering the Rule of Equality the law shall be interpreted on Just and Equal Principle”…
 In view of above, we require your detail opinion on the following supported with the relevant provisions/extracts of Companies Act, 1956 or Companies Act, 2013 or Rules made thereunder and explanations:
 Query 1: The financial statements of ABC Ltd, for preceding 3 financial years i.e. 2011-12, 2012-13 and 2013-14 were prepared under Companies Act, 1956.  has profit in 2011-12 and 2012-13 and loss in 2013-14. How the average net profit will be calculated?
 Query 2: Do accumulated losses of past years be allowed to be deducted for recalculation of profit under the provisions of section 198 (4)(l) of Companies Act, 2013? If yes, How? Any period upto which  can carry forward its accumulated losses for recalculation of profit to ascertain CSR expenditure?
  1. ANALYSIS
A.1       The expression ‘net profit’ is important in two ways in the context and applicability of Section 135 of the Act.
 Firstly, it is one of the criteria to determine whether companyis covered by section 135(1) so as to attract CSR provisions.
 Section 135 (1) is reiterated as follows:
Every company having net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more or a net profit of rupees five crore or more during any financial year shall 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.
 Secondly, for determining the quantum of CSR spends is stipulated as a percentage of “average net profits” as provided in Section 135 (5) of the Act.
 Section 135 (5) reiterated as follows:
The Board of every company referred to in sub-section (1), shall ensure that the company spends, in every financial year, at least two per cent. of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy:
 Explanation.For the purposes of this section average net profit shall be calculated in accordance with the provisions of section 198.
 The above can be conceptualized in two ways:
1) The Calculation of “Net profits” for deciding the criteria
2) The Calculation of “Average Net profit” for deciding the quantum
  • CALCULATION OF NET PROFITS
 The term ‘net profit’ is not defined by section 135 or by any other provision of the Act. But the same has been provided in the Companies Social Responsibility Policy Rules, 2014.
According to Rule 2(1)(f)of the CSR Rules, Net Profit means the net profit of a Company as per its financial statement prepared in accordance with the applicable provisions of the Companies Act, 2013, but shall not include the following, namely:
  1. Any profit arising from any overseas branch or branches of the Company, whether operated as a separate company or otherwise, and
  2. Any dividend received from other companies in India, which are covered under and complying with the provisions of section 135 of the Companies Act, 2013;
Provided 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, (1 of 1956) shall not be required to be re-calculated in accordance with the provisions of the Companies Act, 2013.
It is inferred from the above that for calculation of Net profits for a particular Year out of any of the three preceding financial years, for deciding the criteria of applicability of CSR Provisions in the first case, the net Profits shall be taken as it is calculated in the relevant financial year whether under the Act or the previous Act.
 For Instance if we are taking Net Profits of Financial Year 2012-2013,  for which Financial Statements were prepared as per Previous Act, than it is not required to re calculate the Net Profits in financial Statements of Financial Year 2012-2013 by making changes as per Schedule II and other provisions of new Act.
  • CALCULATION OF AVERAGE NET PROFITS
 ‘Average net profit’ shall be calculated as per section 198 of the Act.
 Thus, it appears that, average net profits will have to be calculated as under:
  • Take net profit as per its financial statements prepared in accordance with the applicable provisions of the Act/of the previous Act. [As per Rule 2(1)(f) of CSR Rules]
  • Exclude the following from net profits:
  • any profit arising from any overseas branch or branches of the company, whether operated as a separate company or otherwise;
    and
  • any dividend received from other companies in India, which are covered under and complying with provisions of section 135 of the Act.
[As per Rule 2(1)(f) of CSR Rules]
  • Make adjustments required by section 198 [As per explanation to Section 135 (5)]
  • Calculate net profit for each of the preceding three financial years as per (a) to (c) above, aggregate them and divide by 3.
 In other words we can say Average Net Profit is the Average of Adjusted Net Profits of preceding 3 Financial Years, whereby adjustment means debits and credits as provided by the Act.
 The proviso of Rule 2(1)(f) of the CSR Rules specifically eliminate the requirement of recalculation of Net profits as per new Act.
Does it mean that recalculation of “adjusted net profits” is not required as per new Act or it says recalculation of “net profits” is not required as per new Act?
 As per our view, the proviso eliminates the requirement of recalculation of net profits for the purpose of A.1.1 and A.1.2.a. In other words the net profit before any adjustments shall be taken as it is as calculated in the financial statements of relevant period as per then prevailing Act.
A.2       Now the Question arises whether net profits of past years for which accounts were prepared in accordance with the previous Act should be adjusted in accordance with section 198 of the Act or should they be adjusted in accordance with corresponding section 349 of the Previous Act?
 If we look at the literal interpretation of section 135(5) of the Act, it seems that the Adjusted Net profit of each preceding Financial Year shall be calculated as per section 198 of the Act.
 Our view is as follows on the basis of following contentions:
  1. Section 198 of the Act is exact corresponding section of Section 349 of the previous Act.
 If we look into the content of the referred sections, we will find that section 198 of the Act is corresponding provision of section 349 of the previous Act without any major variations in the content.
 For Instance,
While calculating adjusted Net profit for Financial Year 2012-2013, then we have to make debits and credits exactly in accordance with section 198 of the Act. Accordingly while making debits of Section 198(4) (k) also, Depreciation would be required to re calculate as per the provisions of section 123 and schedule II of the Act, which is not compatible neither intended by legislators.
 Section 198(4) (k) of the Act reiterated as follows for reference:
“(k) Depreciation to the extent specified in section 123;”
 There is drastic change in the calculation pattern of Depreciation in the Act as compares to previous Act. We believe that this is not the purpose and intention of legislator to re calculate the depreciation of financial years prior to commencement of this Act to give effect to the explanation of section 135 (5) of the Act.
 Similarly section 198 (4) (j) of the Act permitting deduction of outgoings inclusive of contributions made under section 181 of the Act, whereas the said section is applicable only after 01st April 2014.  Now, if we are calculating the profits for financial year 2012-2013, as in above instance, than would we take the deduction of all outgoings in accordance with section 181? Absolutely not but the corresponding section 293(1)(e) of the previous Act have to be followed as provided in section 349(4) (j) of the previous Act.
 Hence the applicability of section 198 is only for the calculation of adjusted net profits of the financial years commencing on or after the commencement of the Act and have no relevancy for calculating Adjusted net profit of the Financial Years prior to commencement of the Act. Accordingly corresponding provision of previous Act, that is section 349 should be followed for the prior period.
 (b)       Principle of Reasonable Construction
 While interpretation of law, if the literal interpretation is absurd or unclear, than we may look into Reasonable construction of law. One may understand the Intention of law and reason behind making that law.
 In our view the Intention of law makers behind giving explanation to 135(5) of the Act is to clarify that the referred net profits in section 135(5) shall be “adjusted Net profits” of the Company. After enactment of the Act, the only effective provision for adjustments (debits and credits) in the Act is S. 198 of the Act, therefore there is a reference of the same in the explanation.
But for the purpose of adjustments in the net profits of financial statements before the commencement of Act, the corresponding section was 349 of previous Act which rule out the adjustments (debits and credits) to be made.
Hence the corresponding section 349 of the previous Act should be taken for the Adjustments (debits and credits) in the Net profits of the financial Statements for the period prior to commencement of the Act.
A.3       The next question arise, What will be the implication of section 198(4)(l) for the purposes of losses ascertained in the financial year 2013-2014 or accumulated Losses at the end of  financial year 2013-2014.
 Section 198(4)(l) reiterated as follows:
(l) the excess of expenditure over income, which had arisen in computing the net profits in accordance with this section in any year which begins at or after the commencement of this Act, in so far as such excess has not been deducted in any subsequent year preceding the year in respect of which the net profits have to be ascertained;
Once again, the literal interpretation ignores the deduction of Adjusted Net loss of the financial years prior to commencement of the Act. 
Adjusted Net loss here means the loss aroused while computing net profits in accordance with section 198 of the Act/349 of the previous Act as the case may be.
 As per our view, as elaborated above, Adjustments in Net profits for financial Year prior to commencement of the Act should be made as per section 349 of the previous Act and for the financial Years after the commencement of the Act the adjustments should be made as per section 198 of the Act.
 Then again, how the Net Losses calculated as per section 349 of the previous Act for the financial year 2013-2014 and the accumulated adjusted Net losses as on 31st March 2014, for which deduction has not been claimed, should be treated. Whether these loss are deductible while calculating adjusted Net profit for Financial Year 2014-2015 under section 198(4)(l)?
 Lets have an example for elaboration:
 Situation A- Calculation of Average Net Profits for CSR Spends in FY 2014-2015
  • The calculation would be as follows:
 (Net profit of FY 2011-2012) + (Net profit of FY 2012-2013) + (Net profit of FY 2013-2014)
“Net profits are Net profits after adjustments of section 349 of previous Act”
  • Let’s assume the following figures
Financial Year
Net profits
Net Profit/Losses after adjustment of section 349
Net Profit/Losses after adjustment of section 198
Accumulated Adjusted Net loss at the end of financial year
2010-2011
100
90
--
0
2011-2012
100
(20)
--
(20)
2012-2013
100
80*
--
(20)
2013-2014
100
(5)**
--
(5)
*Losses of Rs. 20 aroused in FY 2011-12 after adjustments are eligible for deduction in next year, but was not claimed as deduction, under S. 349(4) (l), while making adjustments in Net profits of FY 2012-2013.
 **Accumulated losses of Rs. 20/- as on 31st March 2013 has been deducted under S. 349(4)(l) while making adjustments in Net profits of FY 2013-2014.
  • Therefore the calculation would be :
[(-20)+(80)+(-5)] / 3
 Situation B- calculation of Average Net Profits for CSR Spends in FY 2015-2016
  • The calculation would be as follows:
 (Net profit of FY 2012-2013) + (Net profit of FY 2013-2014)+(Net profit of FY 2014-2015)
                                Divided by 3
“Net profits are Net profits after adjustments of section 349 of previous Act and Section 198 of the Act as the case may be”
  • Let’s assume the following figures
Financial Year
Net profits
Net Profit/Losses after adjustment of section 349
Net Profit/Losses after adjustment of section 198
Accumulated Adjusted Net loss at the end of financial year
2010-2011
100
90
--
0
2011-2012
100
(20)
--
(20)
2012-2013
100
80
--
0
2013-2014
100
(5)
--
(5)
2014-2015
100
--
(10)*
(5+10)
*While Calculating Profit for FY 2014-2015 after adjustments under section 198, the deduction will be made under section 198(4)(l) which provides as follows:
the excess of expenditure over income, which had arisen in computing the net profits in accordance with this section in any year which begins at or after the commencement of this Act in so far as such excess has not been deducted in any subsequent year preceding the year in respect of which the net profits have to be ascertained.
  • As per above only such losses which have aroused after the commencement of new Act (i.e after 1.04.2014) and preceding the year for which profits are being calculated (i.e before FY 2014-2015) shall be eligible for deduction.
  • As 2014-2015 is the first Financial Year after the commencement of new Act therefore at the point of calculation of Adjusted Net profits for FY 2014-2015 no losses are eligible for deduction.
  • The losses of FY 2013-2014 that is of Rs. 5 are not eligible for deduction as these losses has not been ascertained after the commencement of new Act.
  • Therefore the calculation for CSR Spends would be :
[(80)+(-5)+(-10)] / 3
 Situation C- calculation of Average Net Profits for CSR Spends in FY 2016-2017
  • The calculation would be as follows:
 (Net profit of FY 2013-2014)+ (Net profit of FY 2014-2015)+ (Net profit of FY 2015-2016)
                                              and divided by 3
“Net profits are Net profits after adjustments of section 349 of previous Act and Section 198 of the Act as the case may be
  • Let’s assume the following figures
Financial Year
Net profits
Net Profit/Losses after adjustment of section 349
Net Profit/Losses after adjustment of section 198
Accumulated Adjusted Net loss at the end of financial year
2010-2011
100
90
--
0
2011-2012
100
(20)
--
(20)
2012-2013
100
80
--
0
2013-2014
100
(5)
--
(5)
2014-2015
100
--
(10)
(5+10)
2015-2016
100
--
90*
(5)
*In furtherance of Situation B, Rs.10 are the only losses which remained unsatisfied after commencement of New Act (i.e after 1.04.2014) and before the year for which profits are being ascertained (i.e before FY 2015-2016). Therefore Rs. 10 has been deducted U/S 198(4)(l) while computing adjusted Net profits of FY 2015-2016.
  • Therefore the calculation for CSR Spends would be :
[ (-5)+(-10)+(90)] / 3
The contradiction is we can set off all losses since 1956 till 31st March 2013 and from 1stApril 2014 till the provision will be in effect, but we cannot set off the loss from 1st April 2013 till 31st March 2014.
Now looking at the commercial viability, we believe that Law nowhere intends to make difference between the treatments of adjusted Net losses incurred in Financial Year 2013-2014 as compared to Adjusted Net losses of other financial Years.
In our view, this is not logical. The effect of this clause in determining the net profits of any year for the purpose of calculating CSR spends shall be that, not only expenses incurred during that year but also any excess of expenditure over the income of any previous years remaining unsatisfied out of the income of those years should also be deducted, and only the balance income/loss, if any remaining after all such deduction should be the sum on which the average and then said percentage should be calculated.
CONCLUSION
No doubts, MCA needs to clarify the things to get an exact and proper literal interpretation but till such clarification comes in light, we may interpret with principal of reasonable construction and pith and substance rule.
We are at opinion, CSR is a philanthropic activity and charity shall not be on the cost of capital of the Company. Therefore the law makers intended to take out average of such Net profits, after adjustments as provided by the Act, so that actual trading profits could be calculated and CSR could be an expense on actual earned profits of the corporate.
Section 198 of the Act is exactly corresponding to section 349 of previous act with few minor changes. We believe that intention behind the Legislator is not to do changes in the items of debits and credits to ascertain the actual trading Net profits as per Companies Act. Therefore the Net profits should be calculated on the basis of then applicable provisions.
The words “on or after the commencement of the Act” in clause 135(4)(l) cannot change the basic intention of law, that is to deduct ‘excess of expenditure over income’ or we can say ‘trading losses’ of all the previous years, before the net profits are determined for calculating the quantum of CSR spends.
Query 1: The financial statements of , for preceding 3 financial years i.e. 2011-12, 2012-13 and 2013-14 were prepared under Companies Act, 1956.  has profit in 2011-12 and 2012-13 and loss in 2013-14. How the average net profit will be calculated? How much amount to be incurred by  on CSR expenditure during FY 2014-15?
A-The Average Net Profits Should be calculated as provided under para A.1.2 above
Query 2: Do accumulated losses of past years be allowed to be deducted for recalculation of profit under the provisions of section 198 (4)(l) of Companies Act, 2013?  If yes, How? Any period upto which  can carry forward its accumulated losses for recalculation of profit to ascertain CSR expenditure?
A-As per our view, Yes, accumulated losses calculated as per section 198 of the Act / 349 of the previous Act could be deducted till completely set off.
CS Ravi Bhushan Kumar

9990339200

SR & Associates|Company Secretaries

C-55, Sector 8, Noida, UP, India 201307