IN RE MANDAR DESHPANDE (FOR ADMISSION) vs .

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(SC) 743

SUPREME COURT OF INDIA
ARUN MISHRA, S. ABDUL NAZEER, M.R. SHAH, JJ.
IN RE MANDAR DESHPANDE (FOR ADMISSION) - Appellant
SMC(C) No(s). 1/2020
WITH
Diary No(s). 2450/2020 IN C.A. NO.5882/2015 (XVII)
(FOR MODIFICATION ON IA 11628/2020
FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES ON IA 18291/2020
IA No. 11628/2020 - MODIFICATION
IA No. 18291/2020 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Diary No(s). 2458/2020 IN C.A. NO.8493/2015 (XVII)
(FOR MODIFICATION ON IA 11657/2020
IA No. 11657/2020 - MODIFICATION)
Diary No(s). 2461/2020 IN C.A. NO.8496/2015 (XVII)
(FOR MODIFICATION ON IA 11674/2020
IA No. 11674/2020 - MODIFICATION)
Diary No(s). 2476/2020 IN C.A. NO.5832/2015 (XVII)
(FOR MODIFICATION ON IA 11730/2020
IA No. 11730/2020 - MODIFICATION)
Diary No(s). 2578/2020 IN C.A. NO.8646/2018 (XVII)
(FOR MODIFICATION ON IA 12036/2020
IA No. 12036/2020 - MODIFICATION)
W.P.(C) No. 238/2020 (PIL-W)
(FOR EX-PARTE STAY ON IA 17942/2020
FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 38673/2020
FOR CLARIFICATION/DIRECTION ON IA 43664/2020
FOR CLARIFICATION/DIRECTION ON IA 45217/2020
IA No. 38673/2020 - APPROPRIATE ORDERS/DIRECTIONS
IA No. 45217/2020 - CLARIFICATION/DIRECTION
IA No. 43664/2020 - CLARIFICATION/DIRECTION
IA No. 17942/2020 - EX-PARTE STAY)
MA 725-796/2020 in C.A. No. 6328-6399/2015 (XVII)
(FOR EXEMPTION FROM PERSONAL APPEARANCE ON IA 45607/2020
FOR EXEMPTION FROM PERSONAL APPEARANCE ON IA 45620/2020
FOR EXEMPTION FROM PERSONAL APPEARANCE ON IA 45629/2020
IA No. 45629/2020 - EXEMPTION FROM PERSONAL APPEARANCE
IA No. 45620/2020 - EXEMPTION FROM PERSONAL APPEARANCE
IA No. 45607/2020 - EXEMPTION FROM PERSONAL APPEARANCE)
Diary No(s). 9887/2020 IN C.A. NO.6328/2015 (XVII)
(FOR MODIFICATION ON IA 45207/2020
IA No. 45207/2020 - MODIFICATION)
Decided On : 11-06-2020

Advocates Appeared:
Mr. Tushar Mehta, SG, Mr. Rajat Nair,Adv., Mr. Kanu Agrawal,Adv., Ms. Swati Ghildiyal,Adv., Ms. Binu Tamta,Adv., Mr. Gurmeet Singh Makker AOR, Mr. Dhruv Tamta,Adv., Mr. Mukul Rohatgi, Sr. Advocate, Mr. Mahesh Agarwal Adv., Ms. Shally Bhasin, Advocate, Mr. Victor Das, Adv., Ms. Saloni Mahajan,Adv., For Mr. E.C. Agrawala, AOR, Mr. Shyam Divan, Sr. Adv., Mr. Anoop Rawat, Adv., Ms. Smarika Singh, Adv., Ms. Shreya Sircar, Adv., Mr. Chaitanaya Safaya, Adv., Mr. Saurav Panda, Adv., Mr. Rishabh Sharma, Adv., Mr. Shardul S. Shroff (AOR), Dr. Abhishek Manu Singhvi, Senior Advocate, Mr. Gopal Jain, Senior Advocate, Mr. Harsh Kaushik, Advocate On Record, Mr. Vijendra Pratap Singh, Advocate, Ms. Nikita Chitale, Advocate, Mr. Brijender Chahar, Sr.Adv., Mr. Anil kumar Mishra,Adv., Mr. Sriram P.,AOR, Mr. Arvind P. Datar,Sr.Adv., Mr. Ramji Srinivasan,Sr.Adv., Ms. Manali Singhal,Adv., Mr. Mansoor Ali Shoket,Adv., Mr. Santosh Sachin,Adv., Mr. Deepak S. Rawat,Adv., Ms. Aanchal Kapoor,Adv., Mr. Nitin Kala,Adv., Mr. Kunal Singh,Adv., Ms. Ranjeeta Rohatgi, AOR, Mr. Kapil Sibal,Sr.Adv., Mr. Manjul Bajpai, Adv., Mr. Nitin Kala, Adv., Mr. Pukhrambam Ramesh Kumar, AOR, Mr. Swetank Shantanu (AOR), Mr. Pratap Shanker,Adv., Mr. Ravi S.S Chauhan,Adv., Mr. Rajeev Pandey,Adv., Mr. Ankit Kumar,Adv., Ms. Shikha Sarin,Adv., Mr. Rahul Narayan, AOR, Mr. Amit Dhingra, Advocate, Mr. Rohit Mahajan, Advocate, For M/s. Dua Associates, AOR

Headnote:
Gross Revenue - Adjusted Gross Revenue - Court have posed a query to, learned Solicitor General of India, how demand was raised on basis of our judgment with respect to Public Sector Undertakings when licences were different and judgment never dealt with issue of Public Sector Undertakings and their agreements are quite different – Held, Department of Telecom reconsider demand that has been sprung, within three days from today, and on next date of hearing report compliance of action taken on basis of this order - For consideration of prayer with respect to reasonable time to be fixed, as per prayer made on behalf of Union of India, and thus Court have heard learned Solicitor General of India as well as senior counsel appearing for various Telecom Service Providers - There are several issues which are to be considered - Firstly, reasonable time-frame, secondly, how to ensure payment of amount even within that time-frame and what kind of securities, undertakings and guarantees should be furnished to ensure that amount is paid by Telecom Service Providers – Ordered accordingly.

ORDER :

1. We have heard learned counsel for the parties at length.

2. An additional affidavit has been furnished today on behalf of Ms. Vandana Gupta, Deputy Director General (LFP), Department of Telecom, Govt. of India, New Delhi, which is taken on record.

3. We have posed a query to Mr. Tushar Mehta, learned Solicitor General of India, how the demand was raised on the basis of our judgment with respect to Public Sector Undertakings when the licences were different and the judgment never dealt with the issue of Public Sector Undertakings and their agreements are quite different.

4. The affidavit filed on behalf of Department of Telecom also indicates that there are different kinds of licences. Paragraphs 5 and 6 of the affidavit on behalf of Union of India are relevant, which are extracted below:-

“19.1 Gross Revenue:

The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets (or any other terminal equipment etc.), revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of expense, etc.

19.2 For the purpose of arriving at the “Adjusted Gross Revenue (AGR)” the following shall be excluded from the Gross Revenue to arrive at the AGR:

I. PSTN related call charges (Access Charges) actually paid to other eligible/entitled telecommunication service providers within India;

II. Roaming revenues actually passed on to other eligible/entitled telecommunication service providers and;

III. Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales Tax and Service Tax.

The relevant clauses in UL-Access are reproduced as under:

“3.1 GROSS REVENUE

3.2 Adjusted Gross Revenue (AGR) For the purpose of arriving at the “Adjusted Gross Revenue (AGR)”, following shall be excluded from the Gross Revenue to arrive at the AGR:

I. PSTN/PLMN/GMPCS related call charges (Access Charges) actually paid to other eligible/entitled telecommunication service providers within India;

II. Roaming revenues actually passed on to other eligible/entitled telecommunication service providers and;

III. Service Tax on provision of service and Sales Tax actually paid to the Government if gross revenue had included as component of Sales Tax and Service Tax.”

The relevant clauses in ISP License are reproduced are:

“18. Definition of ‘Adjusted Gross Revenue’:

18.1 Gross Revenue: The Gross Revenue shall be inclusive of revenue from Internet access service, revenue from internet contents, revenue from Internet Telephony service, revenue from activation charges, revenue from sale, lease or renting of bandwidth, links, R&G cases, Turnkey projects , revenue from IPTV service, late fees, sale proceeds of terminal equipments, revenue on account of interest, dividend, value added services, supplementary services, interconnection charges, roaming charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of expense etc.

18.2 For the purpose of arriving at the “Adjusted Gross Revenue (AGR)”

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