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TMI Blog2013 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... d. which is the present appellant in these appeals. We have heard the ld. Counsel and the ld. DR. 3. Revenue has raised the following ground in its appeal. "1. On the facts and in circumstances of the case and in law, the ld. CIT(A) erred in not holding that the assessee is entitled for eligible deduction u/s. 35ABB amounting to Rs.7,18,89,454/- on account of variable license fees as against Rs.34,41,65,000/- claimed by assessee." 2.1 The AO allowed an amount of Rs.7,18,89,455/- as variable licence fee as against claim of Rs.34.41 crores. The ld. CIT(A) following the orders in assessment year 2001-02 and also orders of ITAT in ITA No.310/Del./2006 dated 16.12.2009, allowed the assessee's claim, hence, Revenue is aggrieved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the Bombay Bench of this Tribunal in the case of MTNL has after considering the various details and submissions of the assessee and the revenue therein, has held that the Licence fee was paid only for the use of the right to do the business of telecom provider. The said right did not give rise to any capital asset. Further the Bombay Bench of this Tribunal has held as follows:- "8. Revocation of licences - the Central Government may, at any time revoke any licence granted u/s 4, on the breach of any of the conditions therein contained, or in default of payment of any consideration payable the reunder." From perusal of 5.8 of that Act, it is now evident that under the circumstances the licence is revoked, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.06.2010 in ITA Nos.398 and 422(Mum) of 2006, 2935, 2936, 3609 and 3611(Mum) of 2009 and C.O. No.176(Mum)of 2008 for assessment years 2002-03 to 2004-05 and in the case of ACIT vs. Vodafone Essar Gujarat Ltd. dated 29/01/2010 in ITA Nos.1361 and 1878(Ahd.) of 2009 for the assessment year 2006-07. Respectfully following the orders of the co-ordinate Bench, we dismiss the ground raised by the Revenue. 3. In Assessee's appeal, assessee has raised the following grounds: " Ground -1. Disallowance of fixed license fees of Rs.23,95,81,194/- claimed u/s. 35ABB of the Act. 1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in upholding the action of the DCIT, New Delhi ('the AO') in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence fees and status of claim of 35ABB in respect of years as under :- Details of payment of Licence Fees Financial Year Assessment Year Licence Fees 1995-96 1996-97 1,057,461,818 1996-97 1997-98 528,730,909 1997-98 1998-99 1,057,461,818 1998-99 1999-00 370,111,637 1999-00 2000-01 05,488,968 Total 3,319,255,150 B) Commencement of Operations The Appellant commenced its operations from July 31, 1997 (i.e. A.Y. 1998- 99) C) Status of claim u/s 35ABB of the Income Tax Act, 1961 (herein after referred to as "Act") and related proceedings thereto Financial Year Assessment Year Amount claimed in Return of income u/s 35ABB of the Act Remarks & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Hon'ble CIT was in line with the tax treatment of Idea Cellular Ltd. with which the Appellant was merged from 1.4.2006. The Appellant has filed Rectification Application u/s 154 against order giving effect to the order passed u/s. 263/143(3) of the Act which is still pending for disposal, page no. 67 and 68 of PB-II 2001-02 2002-03 402,422,968 Intimation received u/s. 143(1) of the Act thus allowing Appellant's claim of deduction u/s 35ABB of the Act. 2002-03 2003-04 402,422,968 AO allowed deduction of Rs. 16,28,41,776/-. On appeal, the CIT(A) gave direction to the AO to recompute the amount by revising the "appropriate fraction" from the inception of the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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