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2019 (3) TMI 163 - AT - Income TaxRevision u/s 263 - disallow the claim of the assessee u/s. 32(1) - amount paid DOT for purchase of 3G spectrum and restricting the allowance being proportionate amount as applicable for the year as per provisions of section 35ABB - HELD THAT:- No response from the Pr. CIT has been received on this issue, has no relevance for the adjudication before us. We find that the ITAT in the case of Idea Cellular Limited (2017 (12) TMI 660 - ITAT MUMBAI) on same issue has concluded that the assessee was entitled to depreciation. 3G Spectrum was not applied or allotted, assessee could have still continued providing telecommunication services under existing license. The license to operate telecom services is issued u/s. 4 of the Indian Telegraph Act, 1885 which provide rights to establish and operate telecom services. As stated above, without such license one is not ever eligible to bid for 3G Spectrum. 3G Spectrum fees are merely for right to use a particular frequency/spectrum while providing telecommunication services. Even the provisions of section 35ABB of the act are not applicable to such payment In view of these facts, we are of the view that the assessee is entitled for claim of depreciation on merits also and AO has rightly allowed the claim while framing assessment under section 143(3) of the Act and the revision order of CIT Under section 263 of the Act is bad in law - Decided in favour of assessee.
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