Income tax implications for Employees who have been granted shares under Employee Stock Options Scheme (ESOP's) and this is mostly at a per-share price which is significantly lower compared to the prevailing price at which the company share is traded.
We will discuss Income tax liability when an individual
exercises ESOP’s and subsequently when he sells
those shares
1) Sec 17(2)(vi) read with Rule 3(8), Sec 2(14), Sec 2(42A), Sec 45(1),
Sec 48, Sec 49(2AA) and Sec 112A of
Income Tax Act are relevant. We will be discussing the case of a share of the listed company being issued under ESOP to the employee.
2) Sec 17(2) deals with “Perquisites” and is part of head “Salaries”.
Sec 17(2)(vi) specifically includes
the value of shares offered by an employer to employees free of cost or at a concessional rate. Perquisite Value
is Fair Market
value (FMV) of share as reduced by
the amount recovered from employee
and this net value is part of “Salary”.
3)
FMV is determined as per Rule
3(8) of Income Tax Rules. FMV shall
be the average opening and closing
price on the recognized stock exchange on the
date of exercise of the option. In case shares of the company are listed on more than one
exchange the opening and closing price of the share
must be considered for an exchange
where the highest volumes
are recorded. In case there is no trading on the
date of exercise of the option than the day closest to the day of
trading.
4) Example:
ESOP is offered at Rs 25 per share. Employee exercises option of
5000 shares on a day when opening
and closing price on NSE is Rs 95 and Rs 105 per share.
FMV = (105+95)/2 = Rs 100 per share
Perquisite = 5000*(100-25) = Rs 3,75,000
is the value of perquisite added to “Salary”
and the employer will recover this tax at source from the employee.
5) Assume this employee sells shares acquired by him under ESOP. Sec
45(1) is the charging section of
“Capital Gains” and in brief states that profits/gains from “transfer” of "Capital Asset" shall be
chargeable to tax under the head "Capital Gains". Equity share is a "Capital Asset" under Sec
2(14) of the Income Tax Act for the individual. This is irrespective of the fact that
the person holding this share is a salaried
employee and is not in the
business of share trading etc. “Transfer” as defined under
Sec 2(47) includes
the sale.
In conclusion sale of equity shares is the transfer of capital assets
and profit/gains are taxable under “Capital
Gains”.
6) The next step is to determine whether the capital asset (in our case
share) is Short Term Capital Asset or
Long Term Capital Asset as per Sec 2(42A). If an equity share is held for more than 12 months then that equity share
falls under “Long
Term capital Asset”.
Shares issued under ESOP generally
come with a lock-in which exceeds 12 months and is
issued at discount are always sold at price exceeding the exercise price.
Hence, we will assume
a situation of ESOP’s
sold after say three years at
Rs 1850 per share.
7) Share purchased under ESOP being held for more than 12 months is a
Long Term Capital Asset and
profit/gains from transfer of such share are Long Term Capital gains. Mode of Computation of Capital gains is
dealt in Sec 48 of Income Tax Act and in our
case, capital gains as relevant
for our case will be as
below:
The full value of Consideration Less:
i)
Expenses related to Transfer
ii)
Cost of Acquisition (Indexed Cost of Acquisition in case of Long term capital asset)
8)
Sec 49(2AA) determines the Cost
of Acquisition in the case of shares under ESOP. It states that the Cost of Acquisition of shares
under ESOP's will be FMV which is used at the time of determining “Perquisite” which in our
example was Rs 100 per share.
9)
Cost of Acquisition of Rs 100 per share must be reworked
to Indexed cost of Acquisition by multiplying the ratio of Cost Inflation Index (CII) in the
year of transfer by CII in the year of Acquisition. CII is declared
for each year by the Income Tax department. CII for FY 21-22 is 317 and assuming CII in the year of
Acquisition as 120 FY then indexed cost of Acquisition will be
100*317/120 = Rs 264.16 (Say Rs
264)
10)
Capital Gains = Rs 1850-Rs 264
= Rs 1586 per share and Rs 79,30,000 for sale of 5000 shares. We assume there is no cost incurred for the transfer of shares.
11) Sec 112A is applicable for Tax on capital gains in case of transfer
of equity share in the company and the
mandatory condition is Security transaction tax (STT) is paid on acquisition and transfer of equity share.
We assume that STT is paid on Acquisition and
transfer then Tax as per Sec 112A will be 10% of (79,30,000-1,00,000) = Rs 7,83,000
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