JUDGMENT :- Petitioner No.1 before this Court is a Public Tru petitioner No. 2 is its President. It appears that later on Joint Commissioner by order dated 7-7-2000 appointed ad hoc body to ad mini Trust and said body is joined as petitioner No.3 as per orders of this Court dated 8-1-2002. All 3 respondent are officers of India in its Income Tax department. The petitioners challenge order dated 29-7-1992 passed by 132(12) of Income Tax Act , 1961, hearinafter referred to as “Act”. In Short their exemption available to public Trust in view of section 10(22) of act and hence , finding about this status of petitioners and as that has not been recorded, said of assessment proceddings undertaken section 148 of Act and this Court has stayed those proceddings on 7-10-1992. 2. The petitioners challenge order dated 29-7-1992 passed by ndent No. 1 Commissioner of Income Tax in proceedings under section 12 of Income Tax Act, 1961, hereinafter referred to as "Act". In short their ntion is that they are exempt from provisions of Income Tax Act because of I ption available to Public Trust in view of section 10(22) of Act and hence, peal under section 132(12), respondent No. 1 was duty bound to record a ~ng about this status of petitioners and as that has not been recorded, said rdated 29-7-1992 is liable to be quashed and set aside. They also sought stay sessment proceedings undertaken under section 148 of Act and this Court stayed those proceedings on 7-10-1992. The stay continues to operate even today. 2. The petitioner Trust has come into existence in 1888 and it was registered in 1927 initially under Societys Registration Act and in 1961 under bay Public Trust Act. Petitioner has triple story building of which ground r is let out to augment its income and it is running about 12 educational itutions. It is stated that on 27-6-1985 it deposited in three instalments unt of Rs. 20 lakhs with Director of Technology Education, Bombay for ing Polytechnic and to purchase 20 acres of land for it. On 14-2-1991 Income. Officer conducted search proceedings and seized fixed deposit receipts Rs. 9344450/- i.e. Ninty three lakhs Forty four thousand Four hundred fifty years. On 13-6-1991, Assistant Commissioner of Income Tax passed order under tion 132(5) of Act and determined tax liability of petitioner with interest at Rs. On 14-2-1991 Income. Officer conducted search proceedings and seized fixed deposit receipts Rs. 9344450/- i.e. Ninty three lakhs Forty four thousand Four hundred fifty years. On 13-6-1991, Assistant Commissioner of Income Tax passed order under tion 132(5) of Act and determined tax liability of petitioner with interest at Rs. 02458/- only i.e. Three crore Nineteen lakhs Two thousand Four hundred and Fifty eight only and on 17-6-1991, said authority issued notices under section 148 for assessment years 1984-85 to 1990-91. This order was challenged by petitioners in proceedings under section 132(11) on 12-7-1991 and on 31-12- 1992, petitioners prayed for its expeditious disposal. On 31-1-1992, petitioners approach this Court in writ petition 380 of 1992 and challenged order dated 13-6. 1 and in the alternative sought direction to respondent No. 1 to dispose of ir application under section 132(11) immediately. Division Bench of this urt on 5th March, 1992 disposed of said writ petition after recording the Commssion of respondent No. 1 that appeal application under section 132(11)] uld be disposed of by 15-4-1992 and directed deferring of proceedings under tion 148 of Act till its disposal. Accordingly, respondent No.1 has disposed of had proceedings on 29-7-1992 and this order has been challenged in present tition. 3. I have heard Senior Advocate M. G. Bhangade with Advocate V.V. Bhangade for petitioners and Advocate A. S. Jaiswal for respondents. The only grievance made in argument is about refusal of respondent No.1 exercise jurisdiction available to it under section 132(11) by not considering issue of entitlement of present petitioner to exemption in view of provisions section 10(22) of Act. The learned Senior Advocate argues that the lower thority while passing the order on 13-6-1991 has prima facie considered this ue and has answered the same against petitioner. It is argued that in ceedings under section 132(11) very same order is being scrutinized by higher authority and hence, scope of this power is identical in all respects with that of lower authority. It is contended that said authority i.e. respondent No.1 ou have therefore appreciated the plea of present petitioners for exemptio grounds raised by them to object to the application of mind by Ass Commissioner of Income Tax and thereafter only could have passed final on 29-7-1992. It is stated that by refusing to consider this issue, the re available to petitioner has been declined and hence. It is stated that by refusing to consider this issue, the re available to petitioner has been declined and hence. This Court must interfe ask respondent No. 1 to reconsider this aspect. Learned Advocate on behalf of respondents has stated that iss exemption cannot be decided in limited jurisdiction under section 132(11). It is stated that orders under section 132(5) or 132(12) are not final interlocutory nature passed only with a view to determine whether entire as securities discovered in search need to be retained till finalization of assess He argues that the question of entitlement of petitioner to claim exemptio be considered in section 148 proceedings and at present no interference matter is warranted. Reliance is placed upon judgment of Honble Apex reported at 224 ITR page 310 = AIR 1997 SC 1436 , Aditanar Edue Institution vs. Additional Commissioner of Income Tax, to show that exem required to be considered for each year separately and independently and same can be done more conveniently while finalizing the liability of petiti any, under section 148 proceedings. Judgments of High Court in R. Rame Naidu vs. Commissioner of Income Tax, reported at 102 ITR 227 (M Deputy Commissioner of Income Tax vs. Harjivandas luthabhai Zaveri, at 245 ITR 305 (Gujarat) and Narayan R. Bandekar vs. 2nd ITO (Bombay) relied upon by him to explain the nature of proceedings. 4. In R. Ramchandra Naidu (supra) Honble Division Bench of High Court has held that Officer invoking section 132(5) is expected to e caution and deal with matter of summary assessment with such anxi fairness as would be required in order to avoid any unreasonable, interference with private rights of individual. It is further held that Court normally interfere with summary orders unless and until it is foun capricious or mala fide or not honest. Honble Division Bench of Gujara Court in case of Harjivandas luthabhai Zaveri (supra) observed that 132(5) contemplates an opportunity of hearing to be given to person co and order under said provision is not final and conclusive for all p Similarly Honble Division Bench of this High Court in case of Nar Bandekar (supra) held that order under section 132(5) is order of summa and does not conclude the rights of petitioner because while pass assessment order, it is always open to him to point out that assets reco search do not represent undisclosed income. It is further observed that if any violation in exercise of that power by income tax authority, the remedy is to lodge an appeal before the Appellate Authority. Honble Bench therefore refused to interfere with order under section 132(5) contention raised that Officer passing that orders relied upon certain st without giving assessee an opportunity to cross-examine those persons assets recvered were to be held in custody by Officer till completion assessment proceedings. It is therefore clear that the assessee there had filing appeal under section 132(11) and he approached Honble High Court exhausting it. Judgment of Honble Apex Court in case of Aditanar Institution (supra) states that and availability of exemption under 10(22) of the Act is to be evaluated each year to find out whether the on existed during the relevant year solely for educational purposes and purposes of profit. 5. Petitioners here have already filed appeal or proceedings under section) of Act challenging adverse order passed against it by respondent No.1. to be forgotten that there was earlier writ petition in which this Court certain directions to respondent No.1 and accordingly, orders have been by respondent No.1 on 29-7-1992.The Division Bench judgment in case Narayan R. Bandekar (supra) therefore is not relevant and applicable. No the order under section 132(5) is of summary nature and also provisional cause it is not binding upon assessee in assessment proceedings which thereafter. However, the fact that assessee needs to be heard, provision theirin for inquiry, time limit for passing order and previous approval of superior to such orders as also provision for appeal to higher authority against it reveal gislature has provided for enough protection to the assessee even in these dings. The power of search and seizure is extraordinary power and hence, ture has incorporated these measures to safeguard the interest of assessee provision being in favour of assessee and that too in a taxing statute, it needs interpreted liberally in favour of assessee. The provision is made only to see ower of search is not misused to the prejudice of citizen and the officer find out the quantum of asset or security which reasonably is sufficient to the total existing liability of tax with interest upon undisclosed income vered in such search. If assets or securities with him are in excess, he has to the same to assessee forthwith. If assets or securities with him are in excess, he has to the same to assessee forthwith. Though this order is not final and subject asessment orders made in regular proceedings, still legislature has taken precaution to see that there is no unnecessary harassment of assessee in the matter. In such circumstances, when a Public Trust like petitioner which runs of educational institutions has claimed exemption in view of provisions ction 10(22) of Act, the officer passing orders under section 132(5) has also nd out at least prima facie as to why and how such trust is not entitled to ption or how income discovered in search is liable to be treated as ensc1osed income. In the facts of present case respondent No.3 has discharged obligation and after applying its mind, said authority has rejected the claim etitioner for such exemption. Had respondent No. 3 not considered this ct, it would have amounted to denial of reasonable opportunity to petitioner. Appeal or application provided by statute under section 132( I1) is against order and hence, it requires identical application of mind and consideration by appellate authority. The scope of proceedings under section 132(11) of cannot be curtailed in any way and this remedy cannot be circumscribed by considerations which are not relevant under section 132(5) of Act. Appellate ority i.e. respondent No. 1 is equally obliged to prima facie consider ectness or otherwise of entitlement of present petitioners to claim exemption summary inquiry, it is found that petitioner is entitled to claim exemption, e is no question of respondent No. 1 or respondent No.3 retaining any assets roperty towards tax liability if undisclosed income is otherwise explained. 6. In present case respondent No. 1 has refused to consider clai exemption on the ground that it would result in premature decision of which need to be decided during course of regular assessment proceedings obvious that there is failure to exercise jurisdiction on part of respondent The said order therefore to that extent is unsustainable and matter needs remanded back to respondent No. 1 to prima facie consider correctn otherwise of the claim for exemption made by petitioners and its appreciati respondent No.3 in its order dated 13-6-1991 under section 132(5) of the 7. Accordingly impugned order dated 29-7-1992 passed by resp No. 1 to the extent it refuses to consider plea of present petitioners for exe under section 10(22) of Act is hereby quashed and set aside. The m remanded back to respondent No. 1 to consider this aspect and to pass of relation thereto as early as possible and in any case within period of three from today. The finding of respondent No.1 on this issue of exemption with the findings already recorded in order dated, 29-7-1992 shall then be as an order under section 132(12) of Income Tax Act, 1961. The interim passed by this Court on 7-10-1992 shall remain in force during proceedings before respondent No. 1 The petitioner Trust shall not encu any manner any of its interest in any security or asset to the preju respondents in the meanwhile. Rule is thus made absolute accordingly order as to costs. Order accordingly