Short answer: where the parent recharges the cost of its own stock granted to employees of the Indian entity, three questions arrive together — deductibility, transfer pricing and withholding. They are usually examined separately, by different people, and a recharge that fails one tends to fail the others for the same reason.
What is actually happening
Employees of the Indian entity hold options over the parent's stock. The parent bears the cost of settling those options, and recovers it from the Indian entity, whose employees received the benefit.
Commercially that is unremarkable — the entity that got the benefit of the employees' work bears the cost of rewarding them. Three tax systems look at it separately.
1. Deductibility
The recharge is capable of being deductible where it is:
- a real cost borne in respect of employees who work for the Indian entity;
- incurred for the purposes of its business;
- supported by an agreement; and
- backed by evidence of actual payment.
The principle is rarely the fight. The evidence usually is.
The most common failure is the absence of an actual payment. A recharge that exists as a provision, or as an intercompany balance that sits and is never settled, presents very differently from one agreed in advance and remitted. Where the amount has genuinely been borne and paid under an agreement predating the grant, most of the other objections become answerable.
2. Transfer pricing
The instinct is that a cost recovery with no markup cannot be a transfer pricing issue. That is not how it works: this is a transaction between associated enterprises, so it is an international transaction and needs an arm's length outcome in its own right.
Three questions:
- Correspondence. Does the amount recharged relate to the employees who actually serve the Indian entity, or is it a share of a global pool?
- Allocation basis. Is the method defensible and applied consistently — and does it survive being explained without reference to the answer it produces?
- Markup. Should the recharge carry one? Describing it as a pure pass-through is a position to be supported, not a reason the rules stand down.
Arm's length pricing sits at s.161 of the Income-tax Act, 2025 (the old s.92), with reference to the Transfer Pricing Officer at s.166 (the old s.92CA).
3. Withholding
Whether tax must be withheld on the remittance turns on the character of the payment in the parent's hands and on the applicable treaty.
This is worth settling before the remittance. Certification requirements for a foreign remittance arise at the point of payment, and a position adopted then is awkward to revisit later — particularly if the transfer pricing characterisation subsequently moves.
Why they fail together
The three are examined by different people at different times: the deduction at assessment, the pricing in a transfer pricing review, the withholding at the bank.
But they rest on the same facts — what the agreement says, who the employees serve, how the amount was arrived at, and whether money actually moved. So a recharge with no agreement and no payment does not fail one of the three. It fails all of them, for the same reason, in three separate proceedings.
The corollary is more useful: fixing the documentation fixes all three at once.
What the employee is taxed on, separately
Worth stating because the two get conflated.
The employee is taxed on the perquisite at exercise — fair market value on that date less the exercise price — as salary, with the employer deducting. That charge is unaffected by whether the Indian entity gets a deduction for the recharge. They are separate charges on the same underlying benefit and both apply.
For the employee's side in full, including the start-up deferral and the Schedule FA disclosure where the shares are foreign, see ESOP taxation for startup employees.
The checklist
- Is there a written recharge agreement, and does it predate the grant?
- Has the amount been actually paid, not merely provided for?
- Does the recharge correspond to employees who serve the Indian entity?
- Is the allocation basis documented and consistently applied?
- Has the withholding position been determined before remittance?
- Is the characterisation used for withholding consistent with the one used for transfer pricing?
Point 6 catches groups that answered the three questions in three separate conversations. For the other questions a captive faces on overlapping facts, see GCC and captive unit taxation.
This is a working reference, not the statute. For anything you are relying on, confirm the section text and the treaty position directly.