TaxTMI 
TaxTMI 
2017 (12) TMI 418
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng disposed of by this common order for the sake of convenience and brevity. 2. The revenue, in all the three present appeals, has raised common grounds of appeal except for the quantum of addition. 3. First we are taking up the appeal in ITA No. 5002/DEL/2014 for adjudication. Grounds raised in this appeal are as under: "1. On the facts and in the circumstances of the case the Ld CIT(A) has erred in deleting the addition of Rs. 1,26,58,244/- made by the Assessing Officer, without considering that the assessee has not withdrawn its claim for total deduction of the license fee. In the A.Y. 2006- 07, which is pending for adjudication before the Ld ITAT, and without giving a specific direction that the claim should be withdrawn m case the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the AY 2006-07 itself. Thus the assessee is maintaining its claim for total deduction in the assessment year 2006-07 but at the same time he is making a double claim in the AY 2010-11. The plea of the assessee is apparently is not admissible. The assessee is can chose either of the two, he can withdraw his appeal and make claim in the year under reference or he can persist with the issue. However, double claim of the same deduction is not permissible. In view of these facts addition of Rs. 1,26,58,244/- was made as per the revised computation. 5. When the assessee went in appeal before the ld. CIT(A), the ld. CIT(A) directed the Assessing Officer to allow the claim of 1/10th deduction at Rs. 1,26,58,244/- by following the decision of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-se amount to 'transfer' of license by the appellant as required under sub-section (2) of section 35ABB of I.T. Act in order to justify the appellant's claim for allowing the remaining entire license fee expenditure of Rs. 12,65,82,440/- under Phase- I license regime during A.Y. 2006-07 itself. In this case, I find that while migrating from Phase-I license regime to Phase -II license regime, there was no transfer of license from the appellant to any other party. The case laws as cited by the Id. AR vide its submissions dated 18.11.2010 are distinguishable on facts as such cases deal with definition of 'transfer' of a capital asset u/s 2(47) of the Act which includes exchange or relinquishment of the asset or/extinguishme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s April 1, 2005. All payments made by operationalised license holders of Phase 1 in excess of amounts due till the cutoff- date, shall be given credit and adjusted against their One Time Entry Fee (OTEF) for Phase 1" "It may please be noted that option to migrate to Phase II Policy Regime would be considered valid only after all amount due up to cut off date are received in the Government account. On exercising your option to automatic migration to Phase II, and payment of OTEF within prescribed period, you shall be required to sign a fresh Grant of Permission Agreement with Government on the same Terms and Conditions as for the successful Bidders of Phase II" In other words, payment of license fee dues under Phase- I license regime w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) pertaining to this charge, the assessee was granted a license during FY 1995-96 by the Department of Telecommunications, Govt, of India for a period of 10 years for operating telecommunications services. For acquiring the above license, the appellant had paid a fixed license fee during financial years 1995-96 to 1999-2000. The business actually commenced in the month of February 1997. The assessee claimed deduction on account of the above license fee in its return of income from AY 1997-98 to 1999-2000 as per the provisions of section 35ABB by amortizing the license fee over 10 years which was allowed by the Department in all the years. Subsequently, the Department of telecommunications, Govt, of India vide its letter no. 842-47/2000- VAS....
X X X X Extracts X X X X
X X X X Extracts X X X X
....low for ready reference: "We have also carefully perused the reason given by CIT (A) for allowing the deduction of fees paid by assessee under PHASE -I over the remaining life of the license granted under PHASE-II of the regime. We do not find any infirmity in the finding as well as reasoning given by CIT (A) as in substances the reason canvassed by CIT (A) are similar to what we have propounded in our order. In view of this we confirm the order of CIT(A) in granting deduction of Rs. 1,26,58,244/- being 1/1Oth of Rs. 12,65,82,440/- being fees paid by assessee in Phase I as deductible expenditure u/s 35ABB(1) during the year under consideration i.e. A.Y. 2006-07. In result ground no 1 of the appeal of the assessee is dismissed." 7. The m....