In the last few years, we have seen an increase in number of people who are working with big MNC’s in India such as Microsoft, Meta, Qualcomm, Salesforce, Amazon etc. and have been earning huge salary and now such people have also started getting various ESOP, RSU or ESPP from such companies and mainly they are getting shares of the holding company which are either situated outside India or listed outside India.
So, whenever shares are issued by such companies it is either free of cost or for a minimal price depending on the type of product the employee has been offered and in most of the cases shares are offered free of cost.
Now, first of all as per Section 17(2)(vi) of the Income tax act, such shares are taxable as perquisite in the hands of employee under the head ‘Salary’ Income. Such income is taxable in India in the year the shares are allotted. However, the taxability would depend on the period for which such shares are being allotted because generally such ESOP are not allotted for 1 year of service, hence the period of vesting is generally spread in 2-3 years.
Such shares would be taxable as salary even if the person is not under employment with the same employee when such shares are allotted to him. But, now let’s discuss the most important point or mistake that the employee’s make when they receive such shares.
Although, employer deduct and deposit TDS on such shares in India and disclose the same in the Form 16 of employees. However, when the employee’s file their income tax return they have to disclose such shares in Schedule FA in their income tax return and it is a mandatory requirement for all the person’s who hold interest in any financial asset outside India be it shares, bank account etc.
If the employee don’t disclose such asset in their schedule FA it could lead to a penalty of Rs.10 lakh under the Black money act, 2015 and every resident person holding foreign asset should disclose such asset’s in their Income tax return. To read more on such penalty read this case law: Penalty of Rs.10 lakh per year for not disclosing foreign asset under Schedule FA in ITR [Read order] – Taxontips.
We have seen many employees not disclosing such asset’s in their income tax return and they file ITR 1, whereas they have to file ITR 2. Also, employees who get such ESOP or RSU are generally the employees who have salary more than Rs.50 lakh in a year and accordingly they have one more compliance which is to file Schedule AL in the Income tax return where they have to disclose all their assets and liabilities.
However, such employees generally tend to use online services where machines or trained non-professional employees file their income tax return without asking any questions and just based on the Form 16 uploaded by the employee and such employees don’t want to spend an amount which might be even less than just 0.01% of their salary to hire a professional and get their Income tax return filed in a correct manner to avoid such penalties.
Now, the next question which comes is where to show such shares in Schedule FA. It is important to know that deciding where to show is not important, it could be in table A2 or table A3 but to be aware and disclose such foreign assets is important and hence it is advisable to hire a professional and get your return filed correctly by disclosing the foreign asset as well as also filing Schedule FA.
Also, in our journey we have seen people not properly disclosing their losses from share market or stocks wherein either they don’t check what the online software are filing in their income tax return or they are ignorant of such fact which leads to a double loss to them wherein first they could claim such loss and second they have to tax on future profit which could be setoff against such loss. Hence, it is again advisable to get the return filed from a professional.
31st July is the last date to file your Income tax return if you are an Individual and filing Income tax return in time could lead to claiming and carry forward of losses, if any, avoid penalty or late fees and get full refund, if applicable.
Guidance on above article on Income Tax by:
Naman Maloo (C.A., B.Com)
He is currently working as Partner – Direct Tax with a renowned firm in Jaipur having experience in dealing Assessments before Income Tax authority, Tax Audit, International Taxation, Tax planning for NRI, Business planning and consultation.
E-mail: naman.maloo@jainshrimal.in | LinkedIn: Naman Maloo
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