TMI Blog2013 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... , similar amounts on that basis are to be allowed in this year, being consequential. AO is directed to determine accordingly the eligible amount in this year - Decided in fsvour of assessee. - ITA No.3665/Mum/2011 & ITA No.5966/Del./2010 - - - Dated:- 14-8-2013 - B Ramakotaiah And Amit Shukla, JJ. For the Appellant : Shri Ronak G Doshi For the Respondent : Shri S D Srivastava ORDER:- PER : B Ramakotaiah These are cross appeals by the assessee and the revenue against the orders of CIT(A)XI, New Delhi, dated 28.10.2010. 2. Briefly stated, M/s. Idea Mobile Communications Ltd. was a company incorporated on 25/05/1995 as Escotel Mobile Communications Ltd. which changed its name to the above name on 01/07/2004. On 01/04/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. AO had erred both on facts and in law in holding sum of Rs. 29 ,56, 20, 000 /- to the capital expenditure being the variable revenue sharing fee paid pursuant to the migration of the appellant to the New Telecom Policy 1999 regime whereby the Government had upto the date of the migration i.e. 1.8.1999 quantified the fixed fee payable by the appellant upto 31.7.1999 and thereafter fixed a basis for the revenue sharing fee. The CIT(A) has further erred in confirming the action of the AO and in not treating Rs. 29,56,20,000/- to be revenue expenditure . 3.1The Tribunal adjudicated as under: 9.We have heard the rival submissions. We have also perused the order of this Tribunal in the case of MTNL referred to supra. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be allowed as revenue expenditure and we do so. In the circumstances, AO is directed to delete the addition made by holding the variable revenue share fee paid to be capital expenditure. In the circumstances, Ground no.3 in assessee s appeal stands allowed . 3.2.Since the facts of the present case are identical, both the counsels have fairly agreed that the same decision may be applied. Accordingly, following the above precedent, we set aside the orders of the ld. CIT(A) and decide the issue in favour of the assessee. 2.3 Similar orders were also passed in assessee s own case in assessment year 2003-04 in ITA No.5635/Mum/2011 dated 20.11.2012 and also in the case of Bharti Airtel Ltd. vs. ACIT dated 25.06.2010 in ITA Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the merger of the erstwhile company with M/s. Idea Cellular Ltd., the issue as contested in the above ground is not being pressed, since M/s. Idea Cellular Ltd. follows different method of claiming fixed license fees, which are in tune with the orders of the authorities. We dismiss the ground as withdrawn. 3.2 However, the assessee s counsel pressed for the alternate contention with reference to working out the basis for allowing deduction under section 35ABB. It was submitted that the ld. CIT(A) decided the issue in assessment year 2001-02 and in assessment year 2003-04 and also placed the orders and working with reference to details of payment of licence fees and status of claim of 35ABB in respect of years as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act. The appellant has filed petition u/s. 264 of the Act dated May 14, 2009 which is still pending for disposal, page no. 75 to 80 of PAPER BOOK-II 1999-00 2000-01 402,422,968 AO allowed deduction of Rs. 18,07,52,120/- On appeal, the CIT(A) gave direction to the AO to recompute the amount by revising the appropriate fraction from the inception of the license, page no. 41 to 54 of PB-II Order Giving Effect to the CIT(A) order is still pending. No appeal has been filed in ITAT by the Department or the Appellant. 2000-01 2001-02 402,422,968 The Hon ble CIT-IV, New Delhi passed an order u/s. 263 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 years on payment of one time entry fee /migration fee, the deduction is to be allowed on revised basis. The issue of revised claim was decided by Ld. CIT(A) in earlier years with certain directions to AO which are yet to be implemented. The basis of revised amount for deduction is required to be determined in the respective years by AO. Since the Revenue is not in appeal on the directions of CIT(A) in earlier years, whatever amount is quantified therein, similar amounts on that basis are to be allowed in this year, being consequential. AO is directed to determine accordingly the eligible amount in this year. With these directions, the assessee s alternate contention is treated as allowed for statistical purposes. 5. In the result, Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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