JUDGMENT : G.B. Pattnaik, J. - An interesting but yet a ticklish question that arises for consideration in this writ application is whether a registered owner of a vehicle who admittedly loses possession and control over the vehicle on account of same supervening circumstances and the vehicle in question had not factually been used, can be forced to pay the tax and the penalty thereon for the period in question under the provisions of the Orissa Motor Vehicles Taxation Act, 1975 (hereinafter referred to as the "Act"). The aforesaid question crops up for consideration in the following circumstances, 2. The petitioner happens to be the registered owner of a Bus-bearing registration number O. R. B. 5752. The vehicle had been purchased on getting finance from the State Bank of India. As the dues of the Bank could not be paid, the Bank seized the vehicle on 30-10-1989 and physically took away the same from the custody and control of the petitioner and kept it at some unknown place. The petitioner assailed that seizure by approaching this Court in O. J.C: No. 3985 of 1989 and ultimately this Court directed release of the vehicle subject to the condition that the petitioner will pay a sum of Rs. 50,000/- to the Bank. In accordance with the said Judgment of this Court, the petitioner on paying Rs. 50,000/- got the release of the vehicle together with the necessary route permit, registration certificate et cetera on 14th of February, 1990. The Taxing Officer (opposite party No. 1), however, demanded the tax amounting to Rs. 62,640/- for the period from 1-11-1989 to 28-2-1990 and also imposed penalty as there was not off-road intimation from the petitioner in accordance with the provisions of the Act and the Rules made thereunder. The petitioner asserts, which is not disputed by the opposite parties, that immediately after the seizure of the vehicle by the State Bank of India, on 31-10-1989 the petitioner had intimated the Taxing Authority at Balasore about the seizure and removal of the vehicle by the Bank from his possession with a request that the vehicle may be declared to be off-road until the same is released and the petitioner gets possession of the same. A copy of that intimation has been annexed as Annexure-1 to the writ application. A copy of that intimation has been annexed as Annexure-1 to the writ application. No counter affidavit has been filed on behalf of the opposite parties denying the aforesaid assertion of the petitioner. Therefore, though there has been no off-road intimation in accordance with the statutory from and prescription, but the fact has been brought to the notice of the Taxing Authority. Against the order of the Taxing Officer and the notice under Annexure-5 requiring the petitioner to pay the dues amounting to Rs. 62,640/- which is inclusive of the tax for the period from November, 1989 to February, 1990 and the penalty thereon at the prescribed rate, the petitioner moved in appeal to the Chairman, R. T. A., which was registered as Motor Vehicle Tax Appeal No. 1 of 1990. The appellate authority having come to the conclusion that there has been no intimation received from the petitioner by the Taxing Officer about the off-road of the vehicle, dismissed the appeal. The said order of the appellate authority has been annexed as Annexure-6. Against the said order, the petitioner moved in revision to the Chairman, State Transport Authority (opposite party No. 3) The revisional authority disposed of the revision by order dated 30-4-1991, annexed as Annexure-7. The said revisional authority came to hold that the levy of tax and the additional tax for the period was valid and legal and, therefore, the petitioner was liable to pay a sum of Rs. 20,880/- towards tax. So far as the imposition of penalty is concerned, the revisional authority having come to the conclusion that the said levy is illegal as there was no show cause notice to the petitioner, set aside that order with a direction to the Taxing Officer to start a fresh penalty proceeding. It is this order under Annexure-7 as well as the orders of the Taxing Officer and the appellate authority which are being challenged in this writ application. 3. Mr. It is this order under Annexure-7 as well as the orders of the Taxing Officer and the appellate authority which are being challenged in this writ application. 3. Mr. Das for the petitioner contends that the vehicle in question having been taken possession of by the State Bank of India and admittedly the vehicle not being in possession of the petitioner for the period in question until it was released by the State Bank of India pursuant to the direction of this Court in O.J.C. No. 3985 of 1989 and the factum of the vehicle being taken possession of by the Bank having been intimated to the Taxing Officer on 31st October, 1989 even though not in the actual prescribed form, it must be held that there has been an off-road intimation and, therefore, the petitioner cannot be made liable either to pay tax or penalty for the same. The stand of the Department, on the other hand, is that since there has been no intimation about the off-road as required under law, in the eye of law, the petitioner is liable to pay the tax as well as the penalty thereunder and in that view of the matter, there has been no error committed by the Taxing Authorities. 4. Before considering the correctness of the rival submissions, it would be appropriate for us to notice soma of the admitted facts. The petitioner is the registered owner of the vehicle and the said vehicle was seized and taken possession of by the State Bank, of India from the custody of the petitioner on 30-10-1959 and the petitioner could get back the possession of the same only on 14th of February, 1990. This fact had been intimated to the taxing authority immediately on 31-10-1989. u/s 3 of the Orissa Motor Vehicles Taxation Act, tax shall be levied on every motor vehicle used or kept for use within the State at the rates specified in the Schedule. u/s 4 of the Act, the tax in question is required to be paid in advance within such time and in such manner as may be prescribed and it has to be paid by the registered owner and person having possession and control over the vehicle. u/s 4 of the Act, the tax in question is required to be paid in advance within such time and in such manner as may be prescribed and it has to be paid by the registered owner and person having possession and control over the vehicle. u/s 10 of the Act when a motor vehicle is intended not to be used for any period then the registered owner or person having possession or control thereof shall deliver to the Taxing Officer an undertaking duly signed and verified in the prescribed form and manner specifying the period aforesaid and the place where the motor vehicle is to be kept along with such other particulars as may be prescribed and the registration certificate, fitness certificate, permit and tax taken then current, and shall from time to time by delivering further undertakings give prior intimation to the Taxing Officer of the extension, if any, of the said period and the charges, if any, of the place where the motor vehicle shall be kept and under the proviso the said period cannot exceed more than a year. Under Sub-section (3) of Section 10, if there is no undertaking delivered as required under Sub-section (1), then the motor vehicle is liable to pay tax under the Act and shall be deemed to have been used or kept for use within the State. Section 13 is the provision for levy of penalty for failure to pay. Under the Orissa Motor Vehicles Taxation Rules, 1976 (hereinafter referred to as the "Rules"), Rule 19 requires that intimation for temporary discontinuance of motor vehicles shall be given in Form-H stating the required particulars. The proviso to the said Rule indicates that the undertaking in Form-H shall not be accepted unless the documents referred to in Sub-section (1) of Section 10 of the Act are surrendered therewith. The intimation which had been given by the petitioner to the Taxing Officer on 31-10-1989 is undoubtedly not in Form-H and thereby not in accordance with Rule 19 of the Rules and it could not have been given in Form H as the vehicle was seized and taken possession of by the State Bank of India and along with the vehicle the necessary documents required to be produced along with the declaration in Form-H had been taken. Therefore. Mr. Therefore. Mr. Mohanty, the learned Standing Counsel appearing for the Department, was fully justified in making his submission that there was no off-road intimation in accordance with the provisions of the Act and the Rules. But since the petitioner intimated the Taxing Authority immediately on the next morning after the vehicle was seized and taken of by the State Bank of India, and it is not disputed that the petitioner could get back possession only pursuant to the order of this Court in OJC No. 3985 of 1989. there has been a substantial compliance of the requirement to intimate the Taxing Authority about the vehicle being off-road. The liability to pay tax on every motor vehicle being dependent upon the user of the vehicle or keeping the vehicle for use within the State as contemplated in Section 3 of the Act and the vehicle not hawing been used for the period in question, there was no liability of the petitioner to pay the tax as required u/s 3. There has been no tack of bona fides on the part of the petitioner in not giving an off-road intimation in the prescribed form and under the circumstances, the petitioner could not have given any other intimation that the one given by him on 31-10-1989 since he had not got possession or control over the registration certificate as well as other valid documents which were taken away along with the vehicle by the State Bank of India. In such a contingency when the petitioner has intimated to the Taxing Authority about the factum of seizure and he having further indicated that the vehicle would be off-road from the date of seizure until he gets back possession of the same, we are prepared to hold that the said intimation was an intimation of off-road even though not in the prescribed form. Since an intimation had been given to the Taxing Authority and since admittedly the vehicle had not been used or kept for use within the State for the period in question so as to incur the liability of payment of tax u/s 3, we have no hesitation to hold that for the period in question the petitioner had no liability to pay the tax under the provisions of the Act and once he had no liability to pay the tax he does not incur any further liability to pay any penalty. In the premises, as aforesaid, the order of the Taxing Authority under Annexure-5, that of the appellate authority under Annexure-6 and the order of the revisional authority under Annexure-7 are hereby quashed. The writ application is thus allowed. There will, however, be no order as to costs. D.M. Patnaik, J. 5. I agree. Final Result : Allowed