2021 (4) TMI 1330 - AT - Income Tax

Depreciation claim u/s 32 - amount paid to DOT for purchase of 3G spectrum - HELD THAT - As decided in assessee s own case 2019 (8) TMI 1831 - ITAT MUMBAI AO was of the opinion that said capital expenditure on account of acquisition of 3G Spectrum fees is covered under Section 35AAB of the Act and is required to be amortized as per provisions of Section 35ABB of the Act over the period of 20 years for which 3G Spectrum has been allocated and accordingly disallowed the depreciation claim on said 3G Spectrum fees. We noted that this issue is squarely covered by the co-ordinate bench decision of Idea Cellular Limited 2017 (12) TMI 660 - ITAT MUMBAI Following the co-ordinate Bench decision we allow this issue of assessee s appeal.

Summary

Issues:
1. Disallowance under section 40(a)(ia) of Income Tax Act, 1961 for not deducting tax at source u/s 194H on discounts to distributors.
2. Depreciation claim under section 32 of IT Act for payment made to DOT for 3G spectrum.

Analysis:

Issue 1: Disallowance under section 40(a)(ia) of Income Tax Act
The appeal was against the CIT(A)'s order deleting the disallowance of Rs. 59,30,89,904 under section 40(a)(ia) of the Income Tax Act, 1961. The ITAT noted that the issue was previously adjudicated in the assessee's own case by the ITAT. The ITAT referred to a previous decision involving Idea Cellular Limited, where it was held that the assessee was entitled to claim depreciation on 3G spectrum fees as an intangible asset under section 32 of the Act. The AO had disallowed the depreciation claim based on Section 35AAB of the Act, but the ITAT upheld the assessee's appeal based on the precedent set by the Idea Cellular Limited case. Consequently, the ITAT upheld the CIT(A)'s order in favor of the assessee, dismissing the Revenue's appeal.

Issue 2: Depreciation claim for payment made to DOT for 3G spectrum
The second issue pertained to the depreciation claim of Rs. 99.50 crores under section 32 of the IT Act for the amount paid to DOT for the purchase of 3G spectrum. The AO had disallowed the depreciation claim, citing Section 35AAB of the Act and requiring the expenditure to be amortized over 20 years under Section 35ABB. However, the ITAT, following the decision in the Idea Cellular Limited case, allowed the depreciation claim, considering the 3G spectrum fees as an intangible asset eligible for depreciation at the rate of 25% under Section 32 of the Act. The ITAT upheld the CIT(A)'s order in favor of the assessee, dismissing the Revenue's appeal.

In conclusion, the ITAT Mumbai, in its judgment dated 1.4.2021, upheld the CIT(A)'s order in favor of the assessee for both issues, thereby dismissing the Revenue's appeal. The decision was based on the precedents set by previous cases, particularly the decision in the Idea Cellular Limited case, which established the eligibility of the assessee to claim depreciation on the 3G spectrum fees as an intangible asset under Section 32 of the Income Tax Act.