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2025 (5) TMI 1412 - AT - Income TaxNature of expenses - payment made towards transponder fees - capital expenditure OR revenue expenditure - Operation of telecommunication services - HELD THAT - Lower Authorities by relying upon the judgment in case of Bharti Hexacom Ltd. 2023 (10) TMI 786 - SUPREME COURT was rendered subsequent to filing of return of income by the appellant has held that the Transponder Fees is akin to the license obtained by the appellant- which the Apex Court deemed capital in nature despite being paid in instalments the Transponder Fees constitutes payment towards the acquisition of a right essential for the operation of telecommunication services thereby qualifying as capital expenditure. However according to assessee expenditure of transponder fees has always been allowed as a revenue expenditure since inception. On perusal of order of the ld. First Appellate Authority it is evident that there is no observations in this context. In these circumstances in the interest of natural justice we remit this issue to the First Appellate Authority to deal with this issue afresh. Non-waiver of interest levied u/s 234B - We have gone through the judgment of Hon ble Apex Court in Bharti Hexacom 2024 (5) TMI 1246 - SC ORDER direct the ld. AO to waive of the interest. In the result this ground of appeal is allowed.
The core legal questions considered in the appeal are:
1. Whether the payment made by the appellant towards transponder fees constitutes capital expenditure or revenue expenditure under the Income Tax Act, 1961. 2. Whether the expenditure incurred on license fees should be allowed as revenue expenditure or is required to be capitalized and amortized under section 35ABB of the Act. 3. Whether the appellant is entitled to claim amortized license fee expenditure disallowed in preceding assessment years in the current assessment year. 4. Whether interest levied under section 234B of the Act on disallowed license fees should be waived. 5. Issues relating to computation of tax payable, including allowance of brought forward business losses, unabsorbed depreciation, and set-off of MAT credit. Issue 1: Nature of Transponder Fees - Capital or Revenue Expenditure Relevant Legal Framework and Precedents: The primary legal provision considered is the Income Tax Act, 1961, particularly the distinction between capital and revenue expenditure. The judgment of the Hon'ble Apex Court in the case of Bharti Hexacom Ltd. is pivotal, where the Court held that payments akin to license fees, even if paid in installments, are capital in nature as they represent acquisition of a right essential for operation of telecommunication services. Court's Interpretation and Reasoning: The lower authorities, relying on the Bharti Hexacom decision, concluded that transponder fees, being akin to license fees, constitute capital expenditure. The appellant contended that transponder fees are distinct from license fees as they are paid to a different government department (Department of Space) for use of bandwidth capacity for a limited period (one year), and thus do not confer any enduring benefit or right. The appellant also argued that transponder fees have consistently been allowed as revenue expenditure in prior assessments, establishing a principle of consistency. Key Evidence and Findings: The appellant submitted that transponder fees are paid annually and do not create a lasting right. The lower authorities did not make detailed findings on the appellant's submissions or on the principle of consistency. The First Appellate Authority did not express any observations on this issue. Application of Law to Facts and Treatment of Competing Arguments: The Tribunal observed that the lower authorities' reliance on Bharti Hexacom was not fully persuasive given the factual distinction between transponder fees and license fees. The principle of natural justice and fair adjudication was emphasized, noting the absence of detailed consideration by the First Appellate Authority. Conclusion: The Tribunal remitted the issue to the First Appellate Authority for fresh adjudication, directing that the appellant be given an opportunity to be heard and to file evidence. This was done to ensure a fair and comprehensive examination of whether transponder fees are capital or revenue expenditure. Issue 2: Treatment of License Fees Expenditure Relevant Legal Framework and Precedents: Section 35ABB of the Income Tax Act mandates amortization of license fees over the remaining life of the license. The Apex Court's decision in Bharti Hexacom established that license fees paid for telecommunication licenses are capital in nature and are to be amortized accordingly. Court's Interpretation and Reasoning: The appellant initially claimed the entire license fees as revenue expenditure but subsequently filed a revised computation restricting the claim to the amortized amount allowable under section 35ABB. The appellant also claimed an additional deduction representing amortized license fees disallowed in previous years. Key Evidence and Findings: The lower authorities allowed only the amortized amount for the current year and disallowed the balance. However, they did not specifically address the appellant's claim for the additional amortized deduction relating to disallowances in prior years. Application of Law to Facts and Treatment of Competing Arguments: The Tribunal noted the absence of findings on the additional claim and referred to an identical issue decided in the appellant's own case for a prior assessment year, where the matter was remitted for fresh consideration. Given the interconnectedness with the main issue on transponder fees, the Tribunal remitted this issue as well for fresh adjudication with due opportunity to the appellant. Conclusion: The matter was remitted to the First Appellate Authority for fresh consideration of the additional claim for amortized license fees disallowed in preceding years, ensuring that the appellant's submissions and evidence are duly considered. Issue 3: Waiver of Interest under Section 234B Relevant Legal Framework and Precedents: Section 234B of the Income Tax Act imposes interest for default in payment of advance tax. However, waiver of such interest can be considered in appropriate cases, especially where disallowances are subsequently set aside or reconsidered. Court's Interpretation and Reasoning: The appellant challenged the levy of interest on disallowed license fees. The Tribunal, after considering the Apex Court's recent judgment in the Bharti Hexacom case, directed the Assessing Officer to waive the interest under section 234B in respect of the disallowance of license fees. Conclusion: The ground challenging the interest levy was allowed, and waiver of interest was directed consistent with the Apex Court's ruling. Issue 4: Computation of Tax Payable and Related Matters Relevant Legal Framework: The provisions relating to computation of income, allowance of brought forward business losses, unabsorbed depreciation, and set-off of Minimum Alternate Tax (MAT) credit under the Income Tax Act were considered. Court's Interpretation and Reasoning: The Tribunal allowed the grounds relating to computation of tax and directed the Assessing Officer to allow brought forward losses, unabsorbed depreciation, and MAT credit in accordance with the law. Since the transponder fee disallowance was set aside, no interest under section 234B was leviable on that count. Conclusion: The Tribunal allowed these grounds with directions for proper computation in line with statutory provisions. Significant Holdings: "The Transponder Fees is akin to the license obtained by the appellant-which the Apex Court deemed capital in nature, despite being paid in instalments, the Transponder Fees constitutes payment towards the acquisition of a right essential for the operation of telecommunication services, thereby qualifying as capital expenditure." However, the Tribunal remitted this issue for fresh adjudication, emphasizing the need for detailed consideration of the appellant's submissions and evidence. "In the interest of natural justice we remit this issue to the First Appellate Authority to deal with this issue afresh and to pass orders accordingly, upon granting an opportunity of being heard to the assessee and upon considering the evidence on record or any other evidence which the assessee may choose to file at the time of hearing of the matter, as per law." "We direct the ld. AO to waive off the interest levied u/s 234B of the Act in respect of disallowance of license fees pursuant to judgment of Hon'ble Apex Court in Bharti Hexacom." Core principles established include the necessity to distinguish between payments conferring enduring rights (capital expenditure) and payments for temporary or recurring benefits (revenue expenditure), the importance of consistency in tax treatment, and the requirement of fair adjudication with opportunity to be heard before adverse conclusions are drawn. Final determinations on the issues were:
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