The present article covers deduction available under section 35ABB of the Income Tax Act for obtaining a licence for operating telecommunication services. The article briefly explains the treatment on the transfer of the licence and also treatment in case of amalgamation/ demerger.
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Deduction as per section 35ABB of the Income Tax Act–
The provisions of section 35ABB states as under-
- The expenditure incurred should be capital in nature.
- The expenditure should be incurred for acquiring the right to obtain the licence to operate telecommunication services.
- The amount towards eligible expenditure should actually be paid. In other words, deduction under section 35ABB is available on actual payment.
- Any capital expenditure incurred before the commencement of telecommunication business is also allowable as a deduction.
- The deduction is available in equal instalments over the period the licence remains in force.
- Amount of deduction claimed and allowable under section 35ABB is not eligible for depreciation under section 32 of the Income Tax Act.
Treatment under section 35ABB on the transfer of licence-
As seen above, the deduction under section 35ABB is available over the period of time the licence remains in force. Hence it is important to understand the treatment, in case of transfer of the licence, before completion of the period-
1. Treatment when the proceed amount (only capital in nature) is less than the expenditure remaining unallowed as a deduction-
Since the transfer amount is less, the deduction will be allowed under section 35ABB by applying the following formula-
| Deduction allowable under section 35ABB in the previous year in which the transfer takes place | = | Total expenditure remaining unallowed (-) proceed amount |
2. Treatment when the proceed amount (only capital in nature) is more than the expenditure remaining unallowed as a deduction-
Since the transfer amount is more, the amount will be chargeable as business income by applying the following formula-
| The amount chargeable to Income tax under the head ‘Profits and gains of business and profession’ in the previous year in which the transfer takes place | = | Total expenditure incurred for obtaining a licence (-) total expenditure remaining unallowed |
3. Treatment when the part of the licence is transferred and proceed amount is less than the expenditure remaining unallowed as a deduction-
In such case, the deduction allowable for the remaining period would be arrived at by applying the following formula-
|
Deduction allowable under section 35ABB for the expenditure remaining unallowed |
= | Total expenditure remaining unallowed (-) proceed amount |
| Number of previous years not expired at the beginning of the previous year during which the licence is transferred |
Treatment in case of amalgamation or demerger under section 35ABB
In case of amalgamation/ demerger, the same will not be treated as transfer, if the following conditions are satisfied-
1. The amalgamated company or the resulting company is an Indian company; and
2. The amalgamated or the resulting company has not transferred the licence.
Notably, since the same is not treated as transfer, the deduction will be available to the amalgamated/ resulting company as the same would have been available to the amalgamating/ demerged company.
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