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Huge blow to telecom cos: SC hangs up on telcos’ AGR review petitions

Voda Idea & Airtel may file curative petitions, seek more time to pay combined Rs 89,000 cr dues

ET Bureau|
Last Updated: Jan 17, 2020, 08.51 AM IST
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Setback for Vodafone Idea and Bharti Airtel as Supreme Court dismisses AGR review petitions
Setback for Vodafone Idea and Bharti Airtel as Supreme Court dismisses AGR review petitions
NEW DELHI | MUMBAI | KOLKATA: The Supreme Court rejected pleas by Vodafone Idea, Bharti Airtel and Tata Teleservices to review the October 24 verdict that widened the definition of adjusted gross revenue (AGR), leaving the three telcos collectively facing more than Rs 1.02 lakh crore in additional licence fees, spectrum usage charges (SUC), penalties and interest.

“Having perused the review petitions and the connected papers with meticulous care, we do not find any justifiable reason to entertain the review petitions. The review petitions are, accordingly, dismissed,” the apex court bench headed by justice Arun Mishra ruled after an in-chamber hearing on Thursday. The other members of the bench were justices SA Abdul Nazeer and MR Shah.The telcos had sought a limited review of the ruling in the hope of softening the AGR blow but had not challenged the entire order.

Analysts and industry executives said Vodafone Idea and Bharti Airtel are likely to file curative petitions, besides applying to the court for more time to make the payments—a combined Rs89,000 crore for the two. Failure to get these reliefs could potentially bring the curtain down on UK-based Vodafone Group’s struggling telecom joint venture with the Aditya Birla Group.

‘Ball in Govt’s Court'
This, since debt-laden Vodafone Idea, with over 300 million users, does not have the financial muscle to pay AGR-related dues of more than Rs 53,000 crore to the government, analysts said.

However, Bharti Airtel, with over 280 million users, could withstand the AGR shock on the strength of its recently concluded $3 billion fundraising exercise and 30%-plus tariff hikes in December. It will also potentially benefit by way of strong subscriber gains with the telecom industry possibly reduced to two non-state companies over the next 12-18 months, analysts added. The state-owned phone companies, BSNL and MTNL, are in the midst of a government rescue programme.

Some expect the government to act in support of comments that it prefers a market with three private companies. The Department of Telecommunications (DoT) has however said previously that it can’t offer any relief on AGR dues, unless directed by the court.

The apex court verdict came after market hours and belied investor optimism. Bharti Airtel had closed 1.35% higher at Rs 474.05 while the Vodafone Idea scrip closed marginally up at Rs 6.03 on the BSE Thursday.

“We would like to express our disappointment as we believe the long-standing disputes raised regarding the AGR definition were bonafide and genuine,” said Bharti Airtel in an official statement. It added that the company is “evaluating filing a curative petition.”

In a separate statement, Vodafone Idea said it is exploring further options, including filing of a curative petition.

“The sector is already facing heavy taxes and levies in the range of 29% to 32%, which are globally the highest,” said Rajan Mathews, director general of the Cellular Operators Association of India (COAI), which represents private telcos. “The Supreme Court’s dismissal of the review petition is the last straw in contributing to financial distress and it remains to be seen whether the industry will be able to recover from this setback.”

Mathews said the “impacted telcos would now await instructions from DoT on how to proceed with AGR payments... Ideally, DoT and the operators need to sit together and decide what would be the best course of action in the interest of the telecom industry and the citizens of India.”

Govt Intervention
Seeking relaxation from the government may be the better option, a lawyer said.

“The dismissal of the review petition by Hon’ble Supreme Court today undoubtedly poses a very grim situation for telcos. As a next step, telecom companies can consider filing a curative petition, but that too requires many boxes to be ticked before it can be admitted,” said Harsh Walia, partner, Khaitan & Co. “A more pragmatic option may be to approach DoT to seek a deferred payment option, while seeking a stay on further levy of interest, penalty and interest on penalty.”

Lawyer Mahesh Agrawal of Agrawal and Associates represented Vodafone Idea in the review while lawyer Harsh Kaushik represented Airtel.

Vodafone Idea and Bharti Airtel face statutory dues of Rs 53,039 crore and Rs 35,586 crore, respectively, which they need to pay by January 23. Tata Teleservices, which has sold its consumer mobility business to Bharti Airtel, faces dues of Rs 13,823 crore. Apart from them, about 15 companies in the telecom business need to pay more than Rs 1.47 lakh crore to the government by January 23. Licence fees and SUC are calculated on the basis of AGR.

Some non-telcos with telecom licences, including state-run companies such as GAIL India, Power Grid Corp. of India Ltd (PGCIL) and Oil India, which have been served demand notices totalling over Rs3 lakh crore, are also likely to file separate review petitions, lawyers said.

“The ball is now entirely in the government’s court to offer some relief as a last-ditch remedy, especially since Vodafone Idea chairman Kumar Mangalam Birla has already said the company would shut down without relief from the courts or the government,” said Nitin Soni, director, corporates, at global rating agency Fitch.

Bharti Airtel has the “necessary financial resources to withstand the AGR shock,” he said.

The telcos had filed separate petitions in the court, seeking a review of penalties and interest on the dues, and had questioned some components of non-core items that the court had said should be included while computing AGR.

Legal experts said the telcos are likely to underline the prospect of job losses in their curative petitions, apart from the negative economic impact of the telecom sector going bust.

A senior DoT official had expressed doubts about Vodafone Idea being able to pay.

“We are confident Bharti Airtel and Tata Teleservices will meet the deadlines but Vodafone Idea in all meetings with us has made it very clear that it has no money to pay,” he said. The government “could not rule out that VIL will not head for insolvency.”

If Vodafone Idea does not meet the January 23 payment deadline, DoT will have to send demand notices. It then has the option of invoking bank guarantees and revoking its permits as a last resort.

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