Applicability of provisions of Se.56(2) to this case, Income Tax

[RaamSrinivasan Kalpathi]

My client, a private limited company, had accepted a strategic investment comprising CCPS and Equity from an unrelated Non-Resident investor. The premium was around Rs.3990/- per Rs.10/- equity share. The transaction date was May 2023.

The amended AOA clearly provides that the client cannot issue further shares at less than the price issued to the NR investor except for issue of ESOP which was capped at 5% of the capital base.

Query: The company issues ESOP to employees at a premium say Rs.990/- to its employees based on a valuation by a RV as provided in Sec. 62(1)(b) of the CA, 2013 r.w.r 12 of Companies (Share capital and Deb.) Rules 2014 in June 2024.

Would the above transaction attract provisions of 56(2)(x) of the Income-tax Act, 1961?

Profuse thanks