AGR case: Supreme Court fears bankruptcy proceedings may consume dues

The Supreme Court on Thursday expressed concern over adjusted gross revenue (AGR) dues melting away in bankruptcy proceedings.

“We are worried that alm­ost the entire AGR dues will be extinguished in the IBC (Inso­lvency and Bankruptcy Code) proceedings. After sale (of spec­trum), new users will exti­n­guish pending (demands for dues),” Justice Arun Mishra said. He said in case the dues were not paid, the spectrum must be surrendered.

Justice Mishra observed under the IBC spectrum trading was different from spectrum sale. 

“Without paying for the horse, telcos are taking a ride. We want to know from the Department of Telecom­munications (DoT) all details of spectrum allocated since 1999 to RCom (Reliance Communications) and Aircel and the details of spectrum sharing,” he said.

A Bench comprising judges Arun Mishra, S Abdul Nazeer, and M R Shah heard the matter. Senior Counsel Neeraj Kishan Kaul, appearing for the Videocon Telecom resolution professional, told the court its AGR dues were valued at Rs 1,512 crore (by the DoT). As of now, the business is nil and the resolution process is on.

The Union government has filed an appeal with the National Company Law Tribunal that the resolution plans of Reliance Comm­unications and Aircel should not be approved until the spectrum-related dues are cleared.

Counsel for bankrupt firm Aircel said the company had filed an affidavit, which stated that since 2016, there had been eight spectrum-trading agreements between Aircel and Airtel and all had the approval of the DoT.

Hearing on this is on since last week and several rounds of arguments have taken place. However, the apex court is yet to give its verdict on allowing the telecom companies to make staggered payments of AGR dues.

On August 19, the court said the telecom companies had only the right to use the spectrum, which was not an asset that belonged to them because the companies did not own it. The court has said spectrum dues cannot be tre­ated as operational dues bec­ause airwaves are the basis of operations. Reliance Jio has said it has paid the AGR dues, including those derived from the revenue earned by using the spectrum shared with RCom. It has paid 0.5 per cent extra spectrum usage charges for sharing the spectrum, in accordance with the DoT’s guidelines. On August 14, the Supreme Court sought details of the telecom operators using the airwaves allotted to the bankrupt companies, including Aircel and RCom.

It directed the Union government and the resolution professionals of Reliance Jio and RCom to produce documents to ascertain the AGR liabilities of RCom.