Amendment of the Income-tax Rules under section 2 of the Income-tax Act, 1961
Notification No. 264 was published on 23 October 2007. Its subject is Amendment of the Income-tax Rules under section 2 of the Income-tax Act, 1961.
This amends the Income-tax Rules. What it changes is the Rules, not the Act — and a rule can never take away what the section gives.
By the Income-tax (Twelfth Amendment) Rules, 2007, made under section 295 read with Explanation (i) to clause (ba) of sub-section (1) of section 115WC of the Income-tax Act, 1961 and section 22 of the General Clauses Act, 1897, the Central Board of Direct Taxes inserts Part VII C, headed Fringe Benefit Tax, in the Income-tax Rules, 1962 after Part VII B, containing rule 40C. Rule 40C prescribes how the fair market value of a specified security or sweat equity share, being an equity share in a company, is to be determined on the date on which the option vests with the employee. Where the share is listed on a recognised stock exchange on that date, the fair market value is the average of the opening price and the closing price of the share on that date on that exchange; where it is listed on more than one exchange, the average is taken on the exchange recording the highest volume of trading in the share; and where there is no trading in the share on any recognised stock exchange on that date, the closing price on the date closest to and immediately preceding the date of vesting is taken, on the exchange recording the highest volume of trading if that closing price is recorded on more than one exchange. Where the share is not listed on the date of vesting, the fair market value is such value as is determined by a merchant banker on the specified date.
The explanatory memorandum records that the Finance Act, 2007 made employers liable to fringe benefit tax on the value of employee stock options as and when allotted or transferred, that value being the fair market value on the date of vesting as reduced by the amount actually paid by or recovered from the employee, and that Explanation (i) to clause (ba) of sub-section (1) of section 115WC defines fair market value as the value determined in accordance with the method prescribed by the Board.
NOTIFICATION NO. 264/2007, DATED 23-10-2007
In exercise of the powers conferred by section 295 read with Explanation (i) to clause (ba) of sub-section (1) of section 115WC of the Income-tax Act, 1961 (43 of 1961), read with section 22 of the General Clauses Act, 1897 (10 of 1897), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules, 1962, namely:-
1. (1) These rules may be called the Income-tax (Twelfth Amendment) Rules, 2007.
(2) They shall come into force with effect from the 1st day of April, 2008.
2. In the Income-tax Rules, 1962, after Part VII B, the following shall be inserted, namely:-
"PART VII C
FRINGE BENEFIT TAX
Valuation of specified security or sweat equity share being a share in the company.
40C. (1) For the purposes of clause (ba) of sub-section (1) of section 115WC, the fair market value of any specified security or sweat equity share, being an equity share in a company, on the date on which the option vests with the employee, shall be determined in accordance with the provisions of sub-rule (2) or sub-rule (3).
(2) In a case where, on the date of the vesting of the option, the share in the company is listed on a recognized stock exchange, the fair market value shall be the average of the opening price and closing price of the share on that date on the said stock exchange:
Provided that where, on the date of vesting of the option, the share is listed on more than one recognized stock exchanges, the fair market value shall be the average of opening price and closing price of the share on the recognised stock exchange which records the highest volume of trading in the share:
Provided further that where, on the date of vesting of the option, there is no trading in the share on any recognized stock exchange, the fair market value shall be -
(a) the closing price of the share on any recognised stock exchange on a date closest to the date of vesting of the option and immediately preceding such date; or
(b) the closing price of the share on a recognised stock exchange, which records the highest volume of trading in such share, if the closing price, as on the date closest to the date of vesting of the option and immediately preceding such date, is recorded on more than one recognized stock exchange.
(3) In a case where, on the date of vesting of the option, the share in the company is not listed on a recognized stock exchange, the fair market value shall be such value of the share in the company as determined by a merchant banker on the specified date.
(4) For the purpose of this rule,-
"closing price" of a share on a recognised stock exchange on a date shall be the price of the last settlement on such date on such stock exchange:
Provided that where the stock exchange quotes both "buy" and "sell" prices, the closing price shall be the "sell" price of the last settlement.
"merchant banker" means category I merchant banker registered with Security and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992);
"opening price" of a share on a recognised stock exchange on a date shall be the price of the first settlement on such date on such stock exchange:
Provided that where the stock exchange quotes both "buy" and "sell" prices, the opening price shall be the "sell" price of the first settlement.
"recognised stock exchange" shall have the same meaning assigned to it in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);
"specified date" means,-
the date of vesting of the option; or
any date earlier than the date of the vesting of the option, not being a date which is more than 180 days earlier than the date of the vesting;
(f) "equity share" shall have the meaning assigned to it in section 85 of the Companies Act, 1956 (1 of 1956).
[F.No.142/25/2007-TPL]
EXPLANATORY MEMORANDUM
The Finance Act, 2007 amended the provisions of the Income-tax Act to provide that employers will be liable to pay fringe benefit tax on the value of ESOPs granted to employees as and when the ESOPs were allotted or transferred to the employees. The value of ESOPs for the purposes of levy of FBT shall be the fair market value of the ESOPs on the date of vesting of the options as reduced by the amount actually paid, or recovered from, the employee.
Explanation (i) to clause (ba) of sub-section (1) of section 115WC of the Income-tax Act defines "fair market value" to mean the value determined in accordance with the method as may be prescribed by the Board. Accordingly, a new Rule 40C has been inserted in the Income-tax Rules for this purpose.
The new Rule 40C will take effect from the 1st April, 2008 and will, accordingly, apply in relation to the assessment year 2008-2009 and subsequent years.
SOBHAN KAR, Under Secretary.
| Rule of the 1962 Rules | Now, in the 2026 Rules |
|---|---|
| Rule 40C | no counterpart recorded |
1 April 2008.
In the return of fringe benefits of an employer that has allotted shares under an employee stock option plan, and in the valuation report supporting the value taken.
If an option vests on a day when the share is listed and traded, and the opening price is Rs. 190 and the closing price Rs. 210 on the exchange with the highest volume, the fair market value is Rs. 200 per share. Where the share is unlisted, a category I merchant banker's valuation is taken, and it may be made as of a date up to 180 days before the vesting date.
Rules it names. Rule 40C of the Income-tax Rules, 1962. The 1962 Rules were replaced by the Income-tax Rules, 2026, which renumbered nearly everything: a rule number quoted here almost never means the same rule today.
Source: the Income Tax Department’s own published text — its page for this instrument.