IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘A’: NEW DELHI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER &

SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA No.1110 to 1113/Del/2023 [Assessment Year: 2016-17 to 2019-20]

DCIT Bharti Hexacom Ltd.

Circle 4 (2) Bharti Crescent 1 Nelson New Delhi Vs Mandela Road, Vasant Kunj, Vasant Kunj, South West, Delhi-110070 PAN No.AAACH1766B Appellant Respondent Appellant by Ms. Nimisha Singh, CIT DR Respondent by Sh. Ajay Vohra, Sr. Advocate Sh. Rohit Jain, Advocate Sh. Deepesh Jain, Advocate Sh. Shivam Gupta, Advocate Date of Hearing 18.09.2025 Date of Pronouncement 12.12.2025

ORDER

PER C.N. PRASAD, JM, All these appeals are filed by the revenue against the order of the learned CIT(A) / NFAC, Delhi dated 16.02.2023 and 17.02.2023 for Assessment Years 2016-17 to 2019-20.

2. First we take up the appeal for A.Y.2016-17 wherein the revenue has raised following grounds :-

“1. Whether Ld. CIT(A) has erred on question of law and the facts and circumstances of the case by allowing the license fee on revenue sharing basis after July 31, 1999 to be treated as revenue expenditure ignoring the fact that Revenue has filed SLP before Hon'ble Apex Court against the order of Hon'ble Delhi High Court for A. Y.2003-04, 2004-05, 2006-07 and 2007-08 in ITA Nos. 1328/2010, 1336/2010, 114/2012 and 996/2011 (consolidated order) dated 19.12.2013 on the very same issue and which is still pending adjudication before the Supreme Court.

2. Whether Ld. CIT(A) has erred on question of law and the facts and circumstances of the case by deleting the addition made by AO on account of disallowance of subscriber verification penalty by ignoring the fact that Revenue has filed appeal before the Hon'ble ITAT against the above decision of CIT(A) in AY 2012-13, AY 2013-14 and AY 2014-15 and AY 2015-16 which is still pending adjudication.

3. Whether Ld. CIT(A) has erred on question of law and the facts and circumstances of the case by deleting the disallowance under section 40(a)(ia) representing free airtime given as discount to the distributors on maximum retail price of prepaid coupons ignoring the fact that further appeal u/s 260A was recommended and appeal before Hon'ble Delhi High Court was filed in assessee's own case for A. Y.2004-05, 2005-06, 2006-07 and 2008-09 against the orders of the Hon'ble ITAT (Composite order in ITA Nos. 1623/D/2013 (for A. Y. 2004-05) & 1624/Del/2013 (for A.Y.2005- 06) Dated: and 26.07.2016 Nos.3394/D/2012(for composite A. order in Y.2008-09) ITA & 2899/Del/2013(for A. Y.2006-07) filed by assessee and ITA No.2795/Del/2012(for A. Y.2008-09) filed by Revenue).

4. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.”

3. Brief facts are that the assessee filed its return of income on 26.11.2016 electronically declaring income of Rs.1450,15,02,290/- and the assessment was completed under Section 143(3) on 30.12.2019 determining the income of the assessee at Rs.1967,86,66,900/-. In the course of assessment proceedings the AO noticed that the assessee debited the above said payment towards license fees and spectrum charges to its profit and loss account. The assessee was show caused to explain why the license fees and spectrum charges claimed as revenue expenditure should not be treated as capital in nature and accordingly deduction u/s.35ABB should be allowed. The assessee furnished detailed reply which the AO extracted in order in pages 2 to 4 wherein the assessee contended that the issue stands decided in asessee’s favour in earlier years by the Hon’ble High Court of Delhi for the A.Y. 2003-04 to 2007-08 and the decision of the Tribunal in assessee’s own case for A.Y. 2008-09 and 2009-10 wherein the Hon’ble Delhi High Court held that the license fee on revenue sharing basis after 31.07.1999 should be treated as revenue expenditure and is allowable u/s.37(1) of the Act.

4. However, the AO rejected the