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6. Before us the Ld. counsel of the assessee relied on the order dated 30/11/2016 of the Tribunal, Mumbai bench in the case of Mumbai International airport private limited versus ACIT in submitted that amount of passenger service fee(security component) is not the income of the assessee. 6.1 Further, the Ld. counsel submitted that that the amount is received in fiduciary capacity on behalf of the Government of India and therefore the assessee being holder, said amount is not chargeable as income in the hands of the assessee. According to the assessee, the amount was held in the fiduciary capacity due to following reasons:

"2. Nature of Security component of PSF:

2.1 Aviation security is an activity reserved for the Government of India. Force deployment at the airports, security requirements including the requirement of capital items and specifications thereof are laid down by the Government/Bureau of Civil Aviation Security (BCAS). As stated above, PSF is levied under Rule 88 of the Aircraft Rules, 1937 and covers security component as well as facilitation. While the fee is collected by the license of the airports, i.e., the airport operator, through the airlines, the security component thereof, which constitutes 65% of the total amount, can be used only in terms of directions issued by the Government/ BCAS, from time to time. The amount collected by the airport operator, which is kept separately in an escrow account, is thus held in fiduciary capacity. 2.2. Since the amount is held by the airport operator in fiduciary capacity for the Government, the accounts thereof would have to be maintained separately in accordance with the procedure laid down by the Government and have to be offered for audit by the Comptroller & Auditory General of India (CAG).

11.15 Thus, the Tribunal concluded that the funds of PSF(SC) was held by the MIAL in fiduciary capacity on the premise that amount of surplus left in the said account could not have been utilized for any purpose other than security related expenses. Before, us the Ld. Counsel though cited many decisions in written submission, he confined himself mainly to the decision of the Tribunal in the case of Mumbai International Airports P. Ltd.(supra) and the decisions discussed in that, to support his claim of fiduciary capacity, and thus we are discussing the other cases cited by the Ld. Counsel in written submission. 11.16 When we compare the facts of the case of Mumbai International Airports P ltd (supra) with the facts of the present case, we find that in present case, facts are slightly different and surplus funds have been deployed in mutual funds and it is not clear who has enjoyed the dividend income. Thus, straight way we can not follow the finding of the Tribunal (supra) the funds of PSF(SC) were held by the assessing fiduciary capacity. 11.17 Further, on the issue of diversion of income by overriding title also the Ld. Counsel in his arguments relied heavily on the order of the Tribunal (supra) and decisions cited therein, rather than on the decisions cited in written submission. We find that the Tribunal(supra) held that amount of PSF(SC) as diversion of income by overriding title. The relevant finding of the Tribunal is reproduced as under:

11.18 During the hearing, the Ld. Counsel was asked to produce a statement of 'Escrow Account' with narration of entries to assertion whether; the assessee has invested the funds for purposes other than designated purpose of security. But the Ld. counsel provided copy of statement for a period of one month that too without any narration, thus it is not possible at our end to determine whether the assessee utilized the PSF(SC) funds for its own benefit or according to its choice. It is vey crucial to determine that how the assessee utilized the funds lying in 'Escrow Account' and whether the Dividend income was enjoyed by the asssessee. This factual finding would determine whether the PSF(SC) amount was held in fiduciary capacity or it was diversion of income by overriding title. In view of above facts and circumstances, we feel it appropriate to restore the issue to the file of the Assessing Officer for deciding the taxability of income from PSF(SC) in the light of principles or test laid down by various courts in decisions discussed in the case of MIAL(supra) for determining existence of fiduciary capacity and diversion of income by overriding title.