Supreme Court Ruling on Telecom Companies’ Expenses and Taxation

October 19, 2023

In a significant decision, the Supreme Court of India has ruled that the payment of entry fees and variable annual license fees made by telecom companies will be considered capital expenditure rather than revenue expenditure for tax purposes. This ruling has potential financial implications for telecom operators, particularly Bharti Airtel and Vodafone Idea, and could result in additional tax liabilities.

The Supreme Court’s Decision

Nature of Expenditure: The Supreme Court has determined that the payment of entry fees and variable annual license fees made by telecom companies to the Department of Telecommunication (DoT) under the New Telecom Policy of 1999 is of a capital nature.
Amortization Allowed: This means that telecom companies cannot deduct the entire expenditure as an immediate expense. Instead, they must amortize or spread the cost over the license period, as per Section 35ABB of the Income Tax Act.
Setting Aside Previous Distinctions: The Supreme Court also overturned a previous Delhi High Court order that had categorized license fees before and after July 31, 1999, differently, as capital expenses and revenue expenses, respectively.

Impact on Telecom Companies

Change in Accounting: Telecom companies have traditionally treated license fees as an expense and claimed deductions on a year-to-date basis for tax calculations. However, the Supreme Court’s decision compels them to change their accounting practices.
Cash Flow Impact: Experts believe that this accounting change could lead to lower cash flow for telecom companies. Initially, it may result in higher EBITDA (Earnings Before Interest, Taxes, Depreciation, and Amortization) and lower cash flow due to increased tax outgo. Over time, these effects are expected to even out during the license holding period.
Review Petitions Likely: Telecom companies are expected to file review petitions in response to the Supreme Court’s ruling, which may delay the actual tax liability calculations and payments.
Retrospective Application Unclear: The ruling does not clarify whether the changes to accounting practices must be applied retrospectively. It’s anticipated that income tax authorities may demand payment for prior periods along with penalties.

Industry Response

Companies Assessing Impact: Bharti Airtel, one of the major telecom operators affected by the ruling, announced that it is examining the order’s impact and will decide on the next course of action in due course.
Challenges for Operators: Telecom companies that have already incurred significant expenses to obtain licenses will face challenges due to the potential disallowance of these expenses, particularly as many are already dealing with substantial losses.

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