India’s telecom sector stands on the cusp of a revolution, driven by the rollout of 5G, Production Linked Incentive<\/a> (‘PLI’) Scheme and the draft Telecom bill aiming to replace three archaic Telecom laws. The Government is going full throttle with a multi directional impetus through numerous policy<\/a> initiatives including moratorium on regulatory dues of operators, rationalization of Adjusted Gross Revenues<\/a> (‘AGR’) or 100% FDI through the automatic route. In the days to come, one hopes this momentum continues with the rationalization of the Universal Service Obligation Fund (‘USOF’) (i.e., reduction in the levy pending disbursement of unutilized funds) and greater clarity on certain aspects of the newly introduced Applicable Gross Revenue (‘ApGR’) (i.e., defining Telecom Activity to mean licensed activities only).
Budget 2023<\/a>, in my view should be around entailing a greater alignment of the tax policies with the ground realities of the Telecom business.
One such reality is that the sector is capital intensive and demands frequent upgradation of network infrastructure to keep pace with the rapidly changing technology. This invariably results in huge accumulated losses. However, in prescribing a threshold of eight years, the provisions relating to carry forward and set off of losses follow a ‘one size fits all’ approach, disregarding the nuances and peculiarities of different businesses. Perhaps, a case to consider extending this threshold to a period of 12-16 years to allow Telecom companies adequate time to claim these losses.
The situation is somewhat similar in case of carry forward and set off of losses in case of amalgamation. The law stipulates the amalgamated company to hold 75% of the book value of the assets for a period of 5 years. Interestingly, this very time frame is stipulated for, inter alia, Banking, Manufacturing, Public Sector Undertakings, Software, Electricity and Mining companies. Clearly these businesses are significantly different from each other – thus a need to consider relaxing this threshold for the Telecom business.
The sector continues to get plagued with litigation and contesting them is a drain on the resources of all stakeholders. A case in point is TDS on the discount on Recharge Vouchers to the distributors wherein the aggrieved Telecom companies argue that TDS under section 194H @ 5% is not warranted since the transaction is on a principal-to-principal basis and not principal to agent. A 5% TDS has a crippling effect on the margins of the distributors. In my view, the issue could possibly be resolved by reducing the TDS rate from 5% to 1%.
‘Make in India’ is the cornerstone of the country’s ‘Atmanirbhar Bharat’ ambition and the PLI Scheme is a powerful engine to enable that. Therefore, the success of PLI scheme in Telecom cannot be overestimated. The other state incentives are supplementing this scheme well and providing multiple options to the companies to set up manufacturing facilities. However, it would be imperative that these initiatives are duly supplemented by addressing some teething issues of operators and Infrastructure providers which are blocking their working capital and causing immense hardship.
Whether mobile towers and shelters are immovable or not is casting a shadow on the eligibility of their ITC. While that debate continues, the other avoidable debate brewing is on the network equipment installed on these towers, which are clearly movable. The issue here is that whether the provision and the principle under which ITC is blocked on immovable property can equally apply to the network equipment on those towers? Budget 2023<\/a> should clarify on both the counts.
Currently, GST is being paid by the operators under Reverse Charge Mechanism (‘RCM’) on supplies by Government, more particularly on Spectrum Acquisition Fees, License Fee (‘LF’) and Spectrum Usage Charges<\/a> (‘SUC’). ITC arising out of this is creating huge imbalance with outward liabilities. Since this is revenue neutral for the Government, appropriate clarification may be issued exempting the levy of GST on such fees and charges. Alternatively, payment under RCM on Government Services from ITC balance could be permitted.
In summary, the success of the roll out of 5G hinges on this budget and the government must provide the necessary firepower to steer a new phase of innovation and global competency for the sector at large. These positive reinforcements will help bring alive the digital aspirations of the world’s most populous country to move towards a digitally powered economy.
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