Allowing the appeal of the assessee the Tribunal held that; Gains arising to an employee from sale of shares allotted under ESOP (Employees Stock Option Plan) by foreign parent company cannot be assessed as “salaries”. It is assessable as “capital gains”. Fact that employer has shown the gains as “perquisite” in Form 16 is irrelevant. (I.T.A.No.553/CHNY/2018, dt. 24.10.2018)( AY. 2011-12)
Dr. Muthian Sivthanu v. ACIT(2018) 173 ITD 585 (Chennai)(Trib), www.itatonline.org
S. 45 : Capital gains- Salaries- Perquisite-Gains arising to an employee from sale of shares allotted under ESOP (Employees Stock Option Plan) by foreign parent company cannot be assessed as “salaries” – It is assessable as “capital gains”-.Fact that employer has shown the gains as “perquisite” in Form 16 is irrelevant. [S. 15, 17(2)(v)]