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2022 (1) TMI 368 - AT - Income TaxNature of expense - capitalization of licenses fee which give assessee company long term right to use telecommunication spectrum and the annual extension - revenue or capital expenditures - CIT-A deleted the addition - HELD THAT - Revenue has not brought to our notice that the decision of the Tribunal pertaining to Assessment Year 2008-09 2021 (9) TMI 763 - ITAT DELHI was reversed by the Hon'ble High Court of Delhi. The Ld. CIT (A) has given a finding on fact that the Revenue share fee was for the operation and usage of the right given under the license and had not result into creation of capital asset or advantage. This finding on fact is not rebutted by the Revenue. Moreover, the Revenue has not brought to our notice any other binding precedent on this point. Under these facts, we do not see any infirmity into the order of the Ld. CIT(A) The same is hereby affirmed. The Grounds raised by the Revenue is dismissed.
Issues Involved:
1. Whether the license fee paid for telecommunication spectrum should be treated as capital expenditure or revenue expenditure. 2. Whether the annual extension of the license fee should be considered as capital expenditures. Detailed Analysis of the Judgment: Issue 1: Treatment of License Fee as Capital or Revenue Expenditure The core issue in these appeals is whether the license fee paid by the assessee for the right to use telecommunication spectrum should be treated as capital expenditure or revenue expenditure. The Assessing Officer (AO) contended that the license fee provided the assessee with a long-term right to use the spectrum, thus it should be treated as an intangible asset and capitalized, allowing only depreciation. Consequently, the AO disallowed the claimed revenue expenditure and allowed depreciation at 25%, resulting in an addition of ?5,01,85,899/- to the income for the Assessment Year (AY) 2011-12. The assessee appealed this decision, and the Commissioner of Income Tax (Appeals) [CIT(A)] allowed the claim of the assessee, treating the license fee as revenue expenditure. The CIT(A) relied on the decision in the assessee's own case for AY 2008-09, which had been upheld by the Tribunal and the Hon'ble Delhi High Court in the case of Bharti Hexacom, establishing that such fees are revenue in nature. The Tribunal, after considering the submissions and precedents, upheld the CIT(A)'s decision. It was noted that the revenue share fee was for the operation and usage of the rights under the license, and did not create any capital asset or advantage. The Tribunal cited several judicial precedents, including the Supreme Court's decision in Empire Jute Co. Ltd. vs. CIT, which established that if the advantage obtained merely facilitates the trading operations without touching the fixed capital, the expenditure is on revenue account. Therefore, the Tribunal affirmed the CIT(A)'s order, dismissing the Revenue's appeal for AY 2011-12, and subsequently for AYs 2013-14 and 2014-15 as well, as the facts and circumstances remained unchanged. Issue 2: Annual Extension of License FeeThe second issue pertains to whether the annual extension of the license fee should be considered as capital expenditure. The AO had treated the annual extension fee similarly as capital expenditure. However, the CIT(A) and the Tribunal found that the annual fee was paid for obtaining the right to provide VSAT services on a year-to-year basis, and not for acquiring any capital asset. The Tribunal noted that the license was initially granted for ten years and was extendable annually, with the fee being more akin to a royalty based on the number of VSATs installed. The Tribunal, agreeing with the CIT(A), held that the annual payments were revenue in nature, as they did not result in the creation of a capital asset but were necessary for the continued operation of the business. This position was supported by various judicial precedents, including the Supreme Court's decisions in Assam Bengal Cement Co. Ltd. vs. CIT and Empire Jute Co. Ltd. vs. CIT, which emphasized the nature of the advantage in a commercial sense rather than its duration. Thus, the Tribunal dismissed the Revenue's appeals for AYs 2013-14 and 2014-15, consistently holding that the annual extension of the license fee is revenue expenditure, thereby affirming the CIT(A)'s orders. Conclusion:The Tribunal, in a consolidated order, dismissed all three appeals by the Revenue for AYs 2011-12, 2013-14, and 2014-15, upholding the CIT(A)'s decision that the license fee paid for telecommunication spectrum and its annual extension should be treated as revenue expenditure, not capital expenditure. The Tribunal relied on consistent judicial precedents and the facts of the case, which indicated that the license fee facilitated the assessee's trading operations without creating a capital asset.
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