Any service provided by the Government or a local authority to a business entity has been made taxable with effect from 1st April 2016. Prior to this, only support services provided by Government to business entities were taxable. In order to clarify doubts raised by members of Industry and Trade Associations, a detailed Circular No. 192/02/2016-Service Tax dated 13 April 2016 has been issued. The Circular addressed to the field formations of the Central Board of Excise and Customs (CBEC) explains in a Q&A form the various provisions of the notifications issued in this regard. The Circular can be accessed at http://www.cbec.gov.in/resources//htdocs-servicetax/st-circulars/st-circulars-2016/st-circ-192-2016.pdf

One of the issues raised by the telecom service providers (TSP) was whether Service Tax is payable, on instalments due after 1.4.2016, for spectrum assigned/auctioned to them in the past. It has been clarified that service tax payable, whether in full upfront or in instalments, for assignment of right to use such spectrum has been exempted from service tax. Furthermore, services provided by Government by way of allowing a TSP to operate as a telecom service provider or use radiofrequency spectrum during the financial year 2015-16 on payment of licence fee or spectrum user charges, has been specifically exempted from service tax. By these measures, Government has ensured that there is no new tax liability on the TSPs in respect of the services provided in the past.

Under the existing auction system of assigning spectrum, Government has provided the option of either making full upfront payment, or 25%/33% part upfront payment initially and thereafter making payment in equal number of instalments, under the deferred payment option. A  concern of the TSPs related to this was that there was a lack of clarity as to when the liability to pay service tax in respect of the service by way of assignment of spectrum  would arise, in cases  where the assignee chooses to make payment of the auction price  in instalments under the deferred payment option over a period of 10 years- at the time when a letter is  issued by the government  communicating  the full auction price payable   or when the  part upfront amount and  the instalments    are required to be paid as  per the deferred payment option plan.  There were apprehensions that liability to pay the entire service tax payable on the full auction price   at the time of assignment would severely jeopardise their finances. This has been addressed by the Government by making amendments in the Point of Taxation Rules so as to prescribe that service tax would be payable when  the payments, whether full upfront or part under the deferred payment option, become  due or are made, whichever is earlier. As a result, if a TSP opts for the deferred payment option, then the liability to pay service tax arises on the date on which  the part payment or instalments become due as specified in any invoice, bill, challan or any other document.

Finally, the issue of distributing the input tax credit of service tax paid in respect of the services of the assignment of spectrum over the period of assignment, that is 20 years, was another big concern of the TSPs. This has been addressed by the Government by effecting changes in the Cenvat Credit Rules and allowing the credit of service tax paid on one time charges for assignment, i.e. the auction price, to be taken evenly over a period of 3 years. Moreover, the credit of Service Tax paid on spectrum user charges, license fee, transfer fee charged by the Government on trading of spectrum would be fully available in the year in which the same is paid. The Circular dated 13 April 2016 shows by way of illustrations how input tax credits can be taken.

The above principles laid down for Assignment of spectrum would also apply in case of assignment of any other natural resource by Government or a local authority by auction or otherwise.

13-October, 2015

The National Telecom Policy envisage to move at the earliest towards liberalisation of spectrum to enable use of spectrum in any band to provide any service in any technology as well as to permit spectrum pooling, sharing and later, trading to enable optimal utilisation of spectrum through appropriate regulatory framework.

The spectrum trading leads to greater competition provides incentives for innovation, better/new services being available to consumers at cheaper tariffs, better choice to consumer, etc. This also facilitates ease of doing business in India by allowing free play in the commercial decisions and leads to optimisation of resources apart from improving the spectral efficiency and quality of service.

After considering the recommendations of TRAI on spectrum trading, the Government has now decided to allow trading of access spectrum as per guidelines given below:

     (1).         Spectrum trading shall be allowed only between two access service providers, holding Cellular Mobile Telephone Service (CMTS) License, Unified Access Service License (UASL), Unified License (Access Services)(UL(AS)) and Unified License (UL) with authorization of Access Service in a licensed service area.

(2).         All access spectrum bands earmarked for Access Services by the Licensor will be treated as tradable spectrum bands.

(3).         The Access Service Provider who is transferring the right to use the spectrum is hereinafter referred as “Seller” while the Access Service Provider who is acquiring the right to use spectrum is hereinafter referred as “Buyer”.

(4).         Only outright transfer of right to use the spectrum from the seller to the buyer shall be permitted. Leasing of spectrum is not permitted.

(5).         Spectrum Trading shall be permitted only on a pan-LSA (Licensed Service Area) basis. In case the spectrum assigned to the seller is restricted to part of the LSA by the Licensor, then, after trading, the rights and obligations of the seller for the remaining part of the LSA with regard to assignment of that spectrum shall also stand transferred to the buyer. Further, relevant provisions of NIA with respect to spectrum assignment in part of the LSA, which were applicable to seller before the spectrum trade, will apply to buyer subsequent to the spectrum trade.

(6).         Spectrum trading shall be permitted only in the following block sizes (band wise):

(7).         Spectrum trading will not alter the original validity period of spectrum assignment as applicable to the traded block of spectrum.

(8).         Only that spectrum, as specified in para 6 above, is permissible to be traded which has either been assigned through an auction in the year 2010 or afterwards, or on which the Telecom Service Provider (TSP) has already paid the prescribed market price as per para 24 below. In such a case, entire spectrum would be tradable. In respect of spectrum in 800 MHz acquired in the auction held in March 2013, trading of spectrum shall be permitted only if the differential of the latest auction price and the March 2013 auction price on pro-rata basis on the balance period of right to use the spectrum is paid

(9).         Both the licensees trading the spectrum shall jointly give a prior intimation for trading the right to use the spectrum at least 45 days before the proposed effective date of the trading as per prescribed format to Wireless Adviser, Wireless Planning and Coordination Wing, Department of Telecommunications, 6^th floor, Sanchar Bhawan, 20, Ashok Road, New Delhi – 110001.

(10).       Both the licensees shall also give an undertaking that they are in compliance with all the terms and conditions of the guidelines for spectrum trading and the license conditions and will agree that in the event, it is established at any stage in future that either of the licensee was not in conformance with the terms and conditions of the guidelines for spectrum trading or/and of the license at the time of giving intimation for trading of right to use the spectrum, the Government will have the right to take appropriate action which inter-alia may include annulment of trading arrangement.

(11).     The seller shall clear all its dues prior to concluding any agreement for spectrum trading. Thereafter, any dues recoverable up to the effective date of trade shall be the liability of the buyer. The Government shall, at its discretion, be entitled to recover the amount, if any, found recoverable subsequent to the effective date of the trade, which was not known to the parties at the time of the effective date of trade, from the buyer or seller, jointly or severally. The demands, if any, relating to licenses of seller, stayed by the Court of Law, shall be subject to outcome of decision of such litigation.

(12).       Where an issue, pertaining to the spectrum proposed to be transferred is pending adjudication before any court of law, the seller shall ensure that its rights and liabilities are transferred to the buyer as per the procedure prescribed under the law and any such transfer of spectrum will be permitted only after the interest of the Licensor has been secured.

(13).       The relevant provisions in the NIA for auction of spectrum with regard to liberalization of existing spectrum holding in 800 MHz/1800 MHz band shall apply. In respect of other bands, where spectrum has not been acquired through auction, terms and conditions of liberalisation shall be as decided by the Government from time to time.

(14).       The terms and conditions attached to the spectrum under the provisions specified in the relevant Notice Inviting Application (NIA) document or otherwise shall continue to apply after the transfer of spectrum unless specifically mentioned in the guidelines.

(15).       Buyer will be allowed to use the spectrum acquired through trading to deploy any technology by combining it with their existing spectrum holding in the same band after converting their entire existing spectrum holding into liberalized spectrum in that band as per the prevalent terms and conditions.

(16).       The buyer should be in compliance with the prescribed spectrum caps declared from time to time. It is clarified that the spectrum acquired through trading shall be counted towards the spectrum cap by adding to the spectrum holding of the buyer. This will result in increase of spectrum holding of the buyer and reduction in spectrum holding of the seller.

(17).       A TSP will be allowed to sell the spectrum through trading only after two years from the date of its acquisition through auction or spectrum trading or administratively assigned spectrum converted to tradable spectrum.

(18).       In case of administratively assigned spectrum converted to tradable spectrum after paying the prescribed market price, period of two years will be counted from the effective date of assignment of administrative spectrum.

(19).       If buyer is acquiring the entire spectrum holding of the seller in a spectrum band, then it shall fulfil the associated roll-out obligations within the balance time period for compliance subject to a minimum period of two years.

(20).       If the buyer is acquiring a part of the spectrum holding of the seller in a spectrum band, then both buyer and seller will have spectrum holding in that band after the trade. In such a scenario, both will be responsible for the roll-out obligations. There is no change in the roll-out obligations prescribed for seller, even if it is holding a lesser quantity of spectrum in that band post-trade. In addition, buyer will also be required to fulfil entire roll-out obligations. Since there is no change in the roll-out obligations of seller and there will be additional roll-out obligations for buyer, the buyer shall be given entire time duration to fulfil these roll-out obligations.

(21).     If the buyer has met some or all of its roll-out obligations through its prior spectrum holding in that band, it shall be taken into account and the buyer will not be required to repeat the required testing for roll-out obligations it has already met.

(22).     The seller should clear its Spectrum Usage Charges (SUC) and its instalment of payment due (in case seller had acquired the spectrum through auction and opted for deferred payment) till the effective date of trade and thereafter, the buyer shall clear all these dues.

(23).     If any TSP sells only a part of its spectrum holding in a band, both, buyer as well as seller, will be required to pay the remaining instalments of payment (in case seller had acquired the spectrum through auction and opted for deferred payment), prorated for the quantum of spectrum held by each of them subsequent to the spectrum trade.

(24).     A non-refundable transfer fee of one percent (1%) of the transaction amount of aforesaid trade or one percent (1%) of the prescribed market price, whichever is higher shall be imposed on all spectrum trade transactions, to cover the administrative charges incurred by Government in servicing the trade. The transfer fee shall be paid by the buyer to the Government. Transaction amount refers to the amount payable by the buyer to the seller to purchase the rights to use the spectrum block(s). It will be decided exclusively by the buyer and the seller. The market prices shall be equal to the auction determined amount prorated for the balance validity period of spectrum assignment. In case more than one set of market determined prices are available, the latest market determined price available at the time when the TSP wants to trade its spectrum holding, would be applicable. If the auction determined prices are more than one year old, the prevailing market price shall be applied by indexing the last auction price at the rate of SBI PLR.

(25).     The payment is to be made by draft in favour of Pay & Account Officer (HQ), DOT payable at New Delhi.

(26).     The amount received from trading shall be part of Adjusted Gross Revenue (AGR) for the purpose of levy of License fee and Spectrum Usage Charges (SUC).

(27).     Existing rates as prescribed by the Government from time to time for Spectrum Usage Charge (SUC) shall continue to apply on spectrum held by the buyer and seller. The spectrum held by buyer shall include the spectrum acquired through trading. Spectrum acquired through spectrum trading shall be treated akin to spectrum acquired through auction.

(28).     Frequency swapping/reconfiguration from within the assignments made to the licensees shall not be treated as trading of spectrum. The conditions in the NIA shall govern frequency swapping/reconfiguration.

(29).     A licensee shall not be allowed to trade in spectrum if it has been established that the licensee had breached the terms and conditions of the license and the Licensor has ordered for revocation/termination of its license.

(30).     Licensor reserves the right to modify the guidelines from time to time as it may deem fit.