In the presentcase, the assessee-board requires only to fulfil the objective of the Water Act, to expend all the receipts the Air Act and other environmentalLaws. Therefore considering the facts of thecaseread with the principal established by the Hon’ble Delhi High Court and the terms of reference stated by the Apex Court, the receipts in the hands of the assessee-board requires to consider as capital receipts not liable to tax.
52. Prayer: In view of the above and in view of the fact of thecasewe submit that no income had accrued/arisen in the hands of the assessee board and that all the receipts of the assessee-boards are only capital receipts and that all the receipts/income of the assessee-board are state income covered under Article 289 of the Constitution, the receipts/incomes are not liable to be taxed under the provisions of the Income Tax Act, 1961. Accordingly, we pray before the Hon’ble CIT(A) to set aside the assessment determining a total income of Rs. 40,60,04,865/-”
7. The learned counsel for the assessee has contended that Ld. CIT(A) however dismissed the relevant grounds by mentioning in his impugned orders that they were not pressed. He has contended that the said grounds were not only pressed by the assessee but even a detailed submission in support of the issues raised therein was made by the assessee which was extracted by the Ld. CIT(A) in his impugned orders. He has contended the Ld. CIT(A) therefore was not justified in dismissing the grounds as not pressed and urged that the matter may be sent back to the AO for deciding these issues as same were not even considered and decided by the Assessing Officer.
Keeping in view all the facts of thecaseas borne out from the record, we are inclined to accept this contention of the learned counsel for the assessee. Even the ld. DR has not raised any objection for sending the matter back to the AO for adjudication of these vital issues relating to the assessment of the assessee for both the years under consideration after proper and necessary verification. We accordingly set aside the impugned orders of the ld. CIT(A) on these issues and restore the matter to the file of the AO for deciding the same on merit in accordance with law after giving the assessee proper and sufficient opportunity of being heard.
As a result of disposal of the corresponding appeals of the assessee for A.Y. 2014-15 and 2015-16 by us, the stay applications filed by the assessee being S.A. Nos. 18 & 19/Kol/2020 have become infructuous and the same are accordingly dismissed.
Sec. 10(46) of Income Tax Act, 1961— Exemption — Every receipt or amount received/accounted, is not income. Amount received is income in the hands of the assessee if he has title/right over the said amount in form of dominion and right to use the said amount. When examining, the concept of income' one has to keep in mind, commercial reality, specialty of the situation rather than pure theoretical or doctrine aspects. The business aspect of the matter has to be viewed as o whole but without disregarding the statutory language. Depending upon the nature and character of the deposits/payments, should be given to hold whether or not the amount received was income/profit. All realizations do not get impressed with the character of revenue receipts includable in the taxable income and when the assessee does not have unfettered dominion over the money, the same cannot be treated as income. In the present case, the assessee-board requires only to fulfil the objective of the Water Act, to expend all the receipts the Air Act and other environmental Laws. Therefore, the receipts in the hands of the assessee-board require to consider as capital receipts not liable to tax. - WEST BENGAL POLLUTION CONTROL BOARD V/s ASSTT. CIT -  23 ITCD Online 112 (ITAT-KOLKATA)