Assessee is engaged in business of telecommunication services, procured licenses in different telecom circles initially under 1994 agreement which was subsequently governed by New Telecom Policy, 1999. In terms of licence agreement, assessee had to pay entry fee payable up to 31-7-1999 and, thereupon, licence fee was payable as a percentage of gross revenue under licence effective from 1-8-1999. Assessee claimed license fee paid on revenue sharing basis as revenue expenditure. Assessing Officer held that licence fee paid ought to be treated as capital expenditure and amortised over remainder of twelve years licence period. Held that licence granted under Policy of 1999 was non-transferable and non-assignable and if there was a default in payment of licence fee, entire licence could be revoked after sixty days’ notice. Supreme Court by impugned order held that since license fees paid to Department of Telecommunications (DoT) under New Telecom Policy, 1999 was non-transferable and non-assignable and furthermore said payment was intrinsic to existence of licence as well as trade itself, entry fee as well as variable annual licence fee paid would be capital in nature and was to be amortised in accordance with section 35ABB. Assessee filed a review petition seeking reconsideration of impugned order. Held that there was no error apparent on face of record or any merit in review petition, warranting reconsideration of impugned order. Review petition was dismissed. (AY. 1999-2000 to 2007-08)
Bharti Hexacom Ltd. v. CIT (2024) 297 Taxman 368/337 CTR 254 (SC) Editorial : Review petition dismissed, CIT v. Bharti Hexacom Ltd(2023) 155 taxmann.com 322/ 458 ITR 593 /335 CTR 1 (SC)
S. 37(1) : Business expenditure-Capital or revenue-Licence-Capital asset-Amortisation of expenditure-Licence to operate telecommunication services-One-time entry fee and licence fee based on percentage of annual gross revenue earned-Both payments capital in nature and to be amortised-Intangible asset capital in nature-Review petition is dismissed. [S. 35ABB, The Telegraph Act, 1885, S, 4(1), 8, 20, 20A and 21]