ADVIK HI TECH PVT LTD,PUNE vs. DY. COMM. OF INCOME TAX, CIRCLE 8, PUNE

What is not allowable is however amounts spent by the assessee in pursuance of CSR in pursuance of section 135 of the CA 2013. Contributions to the said Kosh and Fund are CSR activities included in Schedule VII to the CA 2013. The disallowance for deduction under section 80G vis-à-vis CSR can be restricted only to contributions to these Funds under CSR. It is a well- established rule of interpretation that one has to look merely at what is stated in the statute; there is no scope for intendment in law. So only contributions to these two funds will not qualify for deduction under section 80G(2)(a). Since the legislature provides for specific exceptions in section 80G(2)(a)(iii)(h)(k) and (iii)(h) (I) of the ITA, then it is the implied intent of the legislature to permit a deduction under section 80G in respect of CSR contributions made to funds and organizations referred to in all other subclauses of section 80G. f) The Ministry of Corporate Affairs ('MCA') has issued Frequently Asked Questions (FAQ) through General circular no. 01/2016 dated January 12, 2016 (FAQ No. 6) has clarified that as follows: Question No.

3.1 The above submissions of the assessee were not found tenable by the Ld. AO and he disallowed the deduction claimed by the assessee u/s 80G on account of CSR expenditure amounting to Rs.64,32,502/- and added back the same to the returned income by observing as under : “3.6 So it is important to note that sums paid need to be donation for the purpose of being eligible for deduction under Section 80G of the Act. The meaning of word ‘donation’ has not been given in the Act. The dictionary meaning of the word 'donation is that it is a gift for charity, humanitarian aid, or to benefit a cause. A donation may take various forms, including money alms, services, or goods such as clothing, toys, food or vehicles. A donation may satisfy medical needs such as blood or organs for transplant

However for the purpose of Section 80G of the act. it is the donations which are in nature of sum paid or money which are relevant. Further the dictionary meaning of the word donation refers to an amount paid voluntarily by a person and that too without any consideration as the donation is a gift. The voluntary act on the part of donor is thus an essential element to treat the amount paid as donation. 3.7 In the case under consideration, the amount has not been paid by the Assessee to the eligible entity specified in Section 80G of the Act on a voluntary basis. But the same has been paid by it as the Assessee was mandatorily required to spend such an amount for specified activities as per the provisions of Section 135 of the Companies Act, 2013. The expression "shall ensure" used in Section 135(5) of the Companies Act 2013 clearly implies that there is a mandate to spend 2% of average net profits of the preceding three years on CSR activity. Thus the required-to-spend amount is perceived by the legislature to be mandatory in nature. So when the Assessee had paid the amount to an eligible entity under Section 80G of the Act, such payment was not made on a voluntary basis but it was to fulfill a mandatory requirement of law on account of CSR spend for activities benefiting the society. 3.8 The Assessee could also have very well made payment to an entity not covered by Section 80G or it could have directly incurred the expenditure for the specified purpose, but it chose to spend only on those areas where they knew that they could comfortably claim deduction u/s 80G of the Act. So the sum paid by the Assessee cannot be considered as a 'donation' for the purpose of Section 80G of the Act as the element of charity is missing. Character of charity is that it is purely voluntary and there is no legal obligation to make that contribution. CSR spends, even if it is contribution to the areas, where 80G deductions is available lacks this purely voluntary character and partakes the nature of an obligation to fulfill the requirement imposed by the law, which is under Section 135 of the Companies Act 2013. 3.9 As per the Explanatory Notes to the provisions of the Finance (Noted that 2014 containers Circular No. 1 dated 21/01/2015 on this issue it has, inter alia, been stated that 13.3 The provisions of section 37(1) of the income-tax Act provide that deduction for any expenditure which is not mentioned specifically in section 30 10 section 36 of Income tax Ac of carrying on shall be allowed if the same is incurred wholly and exclusively for the purposes of carrying on business or profession. As the CSR expenditure (being an application of income) is not incurred the purposes of carrying on business. such expenditures cannot be allowed under the provisions of section 37 of the Income-tax Act Therefore, in order to provide certainty on this issue, said section 37 has been amended to clarify that for the purposes of sub-section (1) of section 37 any expenditure incurred by an assessee on the activities relating to corporate social responsibility referred to in section 135 of the Companies Act. 2013 shall not be deemed to have been incurred for the purpose of business and hence shall not be allowed as deduction under said section 37. However, the CSR expenditure which is of the nature described in section 30 to section 36 of the income-tax Act shall be allowed as fulfillment of conditions. if any specified therein as deduction under those sections subject to fulfillment of conditions, if any, specified therein. 13.4 Applicability- This amendment takes effect from 1st April, 2015 and will, accordingly, apply in relation to the assessment year 2015-16 and subsequent years" 3.1 It has been further stated that in para 13.2 of the above notes that 13.2 CSR expenditure being an application of income is not incurred wholly and exclusively for the purposes of carrying of business As the application of income is not allowed as deduction for the purposes of computing taxable income of a company amount spent on CSR cannot be allowed as deduction for computing the taxable income of the company. Moreover, the objective of CSR is to share burden of the Government in providing social services by companies having net worth/turnover/profit above a threshold if such expenses are allowed as tax deduction, this would result in subsidizing of around one-third of such expenses by the Government by way of tax expenditure." Accordingly, it emerges that CSR expenses are not allowable expenses except those which is of the nature described in section 30 to section 36 of the income-tax Act shall be allowed as deduction under those sections subject to fulfillment of conditions, if any, specified therein. Further it is the intention of the statute to deny such expenses as tax deduction as this would result in subsidizing of around one-third of such expenses by the Government by way of tax expenditure. In other words, CSR expenditure should not confer any tax benefit to the assessee by any manner. In the instant case the assessee seeks to offset the CSR expenditure by claiming deduction u/s. 80G of the Act, which defeats the intention of the statute in this regard. 3.10 Again if one were to look at the legislative intent behind the insertion of CSR provisions, it is mainly to ensure that the well to do Corporate participate in the growth of the Society and its surroundings by way of making meaningful monetary contributions. There may be many areas where the Government may be unable to reach or lend assistance to, out of resource or other constraints so the main objective behind introducing the concept of CSR spend is to enable the Company (only eligible ones not all) to share the burden of the Government to ensure benefits to the society by and large. Now if the Corporate were to spend only on those areas where 80G deductions are available, it would defeat the very purpose of roping in the Corporate to share this burden as then it would result in subsidizing these expenditure and Government ultimately bearing the burden of these CSR spending by way of reduced taxes collected. And this could certainly have been not in the minds of the legislators while they were proposing this new law. As regards the case laws relied upon by the assessee are concerned, it is found that these decisions have not been accepted by the department on merit but were not further contested either due to low tax effect or as the order was aside on this issue to file of AO for further examination. Since the issue has not reached finality, these case laws are not applicable to this case. Most importantly the assessee cannot be allowed to take tax benefit on CSR expenditure directly or indirectly as per the intent of amendment made in law.”

4. Aggrieved, the assessee carried the matter before the Ld. CIT(A) challenging the disallowance made by the Ld. AO of deduction of Rs.64,32,502/- claimed by the assessee u/s 80G of the Act in respect of donation given as part of CSR activities. Before the Ld. CIT(A), the assessee contended that expenditure made on account of CSR activities can be claimed as deduction as there is no bar in section 80G to claim CSR donations as donations u/s 80G of the Act. It was also contended that there is no co-relation in section 37 and section 80G of the Act. Rejecting the above contentions of the assessee and by referring to the Explanatory Notes to the provisions of the Finance (No. 2) Act, 2014 read with Explanatory Memorandum to the Finance ( No. 2) Bill, 2014 the Ld. CIT(A)

observed that the CSR expenses are mandatory for the companies specified as per the Companies Law. The CSR expenses cannot partake character of donation because the donation is often a voluntary and personal decision, whereas, CSR is a strategic decision made by the company to manage its social and environmental impact as per the requirement of the Companies Act. There is no explicit provision in the Companies Act that the payment to a charitable institution shall also qualify for the fulfillment of the CSR responsibility. For the aforesaid reasons, the Ld. CIT(A) confirmed the addition of Rs.64.32.502/- made by the Ld. AO The relevant findings and observations of the Ld. CIT(A) reads as under : “4.2.3 The appellant contention is that the CSR expenses can be claimed as deduction u/s 800 of the Act. Section 80G states that any sum paid by the assessee has to be in nature of donations: Therefore, the important factor is that the amount is to be paid as donation for the eligible entity to claim deduction under Section 80G of the Act. The newly inserted Section 135 of the Companies Act mandates that every company fulfilling the threshold specified therein in terms of net worth or turnover or net profits shall ensure that the company spends, in every financial year, at least two per cent of the average net profits made during the tree immediately preceding financial years pursuance of its Corporate Social Responsibility Policy. The appellant itself has admitted that the expenses are its CSR activities in terms of Companies Act in this case appellant, is trying to explain and maintain the section 135 of Companies Act for the purpose of mandatory CSR spends on one hand. On the other hand it is trying to explain this spends as donation to eligible entities in order to claim it as deduction u/s 80G of the Act. It is important to understand that the CSR spends are mandatory for the companies specified as per the companies law. The expenses incurred are to be done in accordance with the schedule given in the company act. It is also specified that the company shall give preference to the local area and areas around it where it operates, for spending the amount earmarked for Corporate Social Responsibility activities. The CSR expenses cannot partake character of donation because the donation is often a voluntary and personal decision, whereas CSR is a strategic decision made by a company to manage its social and environmental impact as per the requirement of the Companies Act. Being aware of the activity that can be interpreted otherwise, the statute has introduced Explanatory Notes to the provisions of the Finance (No. 2) Act, 2014 explaining the same. The intent of Parliament in bringing the said provision is given in the Explanatory Memorandum to the Finance (No.2) Bill, 2014 and is reproduced as under : "The existing provisions of section 37(1) of the Act provide that deduction for any expenditure, which is not mentioned specifically in section 30 to section 36 of the Act, shall be allowed if the same is incurred wholly and exclusively for the purposes of carrying on business or profession. As the CSR expenditure (being an application of income) is not incurred for the purposes of carrying on business, such expenditure cannot be allowed under the existing provisions of section 37 of the Income-tax Act. Therefore, in order to provide certainty on this issue, it is proposed to clarify that for the purposes of section 37(1) any expenditure incurred by an assessee on the activities relating to corporate social responsibility referred to in section 135 of the Companies Act, 2013 shall not be deemed to have been incurred for the purpose of business and, hence, shall not be allowed as deduction under section 37. However, the CSR expenditure which is of the nature described in section 30 to section 36 of the Act shall be allowed deduction under those sections subject to fulfillment of conditions, if any, specified therein."

Further, there is no explicit provision in the Companies Act that the payment to a charitable institution shall also qualify for the fulfillment of the CSR responsibility. Therefore, the form of expenses under CSR cannot be changed in order to claim deduction. 4.2.4 Considering the above discussion, I am of the considered opinion that the CSR expenses incurred by the appellant as per the mandates of the Companies Act cannot be claimed as deduction u/s 80G of the Act. Therefore, the disallowance of Rs.64,32,502/- made by the AO is hereby confirmed.”

6. The Ld. AR reiterated the submissions made before the Ld. AO and the Ld. CIT(A) in support of its claim. He submitted that the CSR expenses are in the nature of donations and any sum paid by the assessee as donation can be claimed as deduction under the provisions of section 80G of the Act. He further submitted that the impugned issue is covered in favour of the assessee by the Co-ordinate Bench of Pune Tribunal in the case of DCIT Vs. Credit Suisse Services (India) Private Limited in dated 15.05.2024.

5.1. Ground 1 Vide this Ground, the Appellant has challenged action of the AO in making the disallowance of Rs.4,55,13,521/- u/s 80G with respect to the donations forming part of Corporate Social Responsibility (‘CSR’). In this regard, the Appellant has submitted that : • The amount paid to various funds is without any consideration in return and is in the nature of irrevocable contribution. Thus, such contributions partake the character of donation • Since, all other requisite conditions under section 80G have been satisfied and not in dispute, the Appellant is eligible for deduction under section 80G of the Act. The institution to whom the Donations are made are duly registered under section 80G(5) of the Act • The CSR expenditure is not allowed only for the purpose of section 37 for computing business income. If such expenditure is otherwise allowable as deduction under other provisions of the Act, the same cannot be disturbed. • The donations/expenditure made by the Appellant is towards women empowerment, education, environmental research etc. and forms part of CSR expenditure as per Schedule VII of the Companies Act, 2013. • The legislature has restricted the benefit only in two specific cases being ‘Swachh Bharat Kosh’ (‘SBK’) and ‘Clean Ganga Fund’ (‘CGF’) as per sub- clause (iiihk) and (iiihl) of section 80G(2)(a) of the Act, thereby implying that CSR contribution to other eligible institution qualifies for deduction under section 80G of the Act. The Appellant has made CSR contribution to funds other than SBK and CGF, thus, claim under section 80G of the Act shall be allowed. • The said claim, as discussed above, is supported by the Explanatory Memorandum to Finance Bill 2014 with restriction placed only in relation to specified funds under section 80G, clarification issued by MCA and multiple favourable decisions. I have considered the submissions made by the Appellant. I find that the issue is covered in favour of the Appellant by various decisions of Hon’ble Tribunals. I find that Hon’ble ITAT Bangalore in the case of Allegi Services (India) Pvt Ltd vs ACIT, (ITA No.1693/Bangalore/2019) has decided this issue in favour of the assessee. Relevant part of the said decision is reproduced as under : “Brief facts of the case are as under: 2. Assessee is a company and filed its return of income on 30/11/2016 declaring income of Rs.73,44,38,310/-. The case was selected for scrutiny and notice under section 143 (2) and 142 (1) along with questionnaire was issued to assessee. In response to statutory notices, representative of assessee appeared before Ld.AO and filed requisite details as called for.

5. The assessee has drawn strong support from Ld. CIT(A)'s above extracted detailed discussion.

6. We have given our thoughtful consideration to the foregoing rival stands and find no merit in the Revenue’s instant sole substantive grievance. Suffice to say, the Revenue’s only argument is that once the impugned expenditure is not allowable u/sec.37 of the Act; the same is also not exigible to sec.80G deduction as well. We find no substance in Revenue’s instant sole substantive grievance as the Ld. CIT(A)'s detailed discussion has considered a catena of case law of various judicial forums (supra) already accepting the very issue in assessee’s favour and against the department. We thus adopt judicial consistency herein as well to uphold the Ld. CIT(A)'s detailed discussion accepting the assessee’s sec.80G deduction claim. Rejected accordingly.”

Order pronounced in the open court on 09th October, 2024.