ORDER 19.09.2005 — Heard learned counsel for petitioner and learned Standing Counsel (Transport). Petitioner is the owner of a stage carriage bearing Registration No. OSM-4687 running on a temporary permit from Sainkula in the District of Mayurbhanj to Calcutta. On 29.10.1994 a demand notice was served on petitioner for payment of arrear motor vehicle tax. Petitioner complied with the same and deposited the entire demanded amount of Rs.10,830/- on 8.11.1994. Thereafter a show-cause notice was served on 8.7.1996. Annexure-3 asking him to pay a penalty of Rs.20,235/- on the ground that in course of verification of the account by the Audit Party, it was found that no penalty was imposed for non-payment of the arrear tax (which was paid on 8.11.1994). On 18.7.1996 itself petitioner filed the show-cause stating that he was not liable to pay any penalty in view of the diligent and sincere payment of arrear tax on demand. When the matter stood thus on 8.7.1996 while granting temporary permit Annexure-5 a condition was stipulated that “the operators shall clear all outstanding dues within 30 days.” In this writ petition, peti¬tioner challenges to that stipulation in Annexure-5 as a condi¬tion precedent for granting temporary permit. Simultaneously, he also challenges imposition of penalty of Rs.20,235/- as per the tax clearance certificate, Annexure-2. Learned counsel for petitioner invites our attention to the ratio in the case of Pranab Kumar Parija v. Collector-cum-Chairman, RTA., Cuttack and others, AIR 1994 Orissa 318 a Divi¬sion Bench decision of this Court and argues that ‘tax’ and ‘penalty’ under the Orissa Motor Vehicles Taxation Act stands on different footing. Therefore to grant clearance certificate stipulation for payment of penalty is not mandatory and there is nothing to be treated as inclusive while granting certificate under Rule 84(2) of the Orissa Motor Vehicles Rules, 1993. At this stage, learned Standing Counsel brings to our notice a decision of the apex Court in Civil Appeal No.6670 of 1994. judgment delivered on 23rd September, 1997 to indicate that the aforesaid ratio of this Court was set aside by the apex Court. On coming to know about that position Mr. D. B. Das, learned counsel for petitioner regrets for citing an over-ruled decision and states that he did so unintentionally. judgment delivered on 23rd September, 1997 to indicate that the aforesaid ratio of this Court was set aside by the apex Court. On coming to know about that position Mr. D. B. Das, learned counsel for petitioner regrets for citing an over-ruled decision and states that he did so unintentionally. Referring to the case of M/s. Hindustan Aeronautics Ltd. v. Taxing Officer-cum-Regional Transport Officer, Koraput and others 1995(1) OLR 81 he argues that for failure of payment of tax, payment of penalty is not a must unless there is intentional default or avoidance to pay the tax. In a case of innocent de¬fault in payment of tax, imposition of penalty is not a sine qua non. Accordingly, he argues that in this case, petitioner having not defaulted to pay tax intentionally he is not liable for the penalty as per the demand made in Annexure-3. In Civil Appeal No.6670 of 1994 (the Collector-cum-Chairman, RTA, Cuttack and others and Pranab Kumar Parija) Hon’ble the apex Court held that : “We find considerable merit in the submission of Shri Sanghi. The requirement regarding a tax clearance certificate has been introduced in the Rules for the purpose of ensuring that the person who applied for permit does not have any arrears out¬standing against him. In exercise of its rule making power the rule making authority could have prescribed in the Rules that certificate about clearance of the amount of penalty should be filed with the application for permit. Instead of saying so in the Rules such a requirement has been introduced in Form-III appended to the Rules. Form-III is part of the Rules having been made by the rule making authority in exercise of its rule making power. If the rule making authority could make a rule introducing the requirement about a certificate regarding clearance of penal¬ty dues for an application for permit there appears to be no reason why such a requirement could not be introduced by it in Form-III which is also a part of the Rules. The tax clearance certificate referred to in Rules 22(2) and 84(2) is the certifi¬cate of the nature, as prescribed in Form-III. It cannot, there¬fore, be said that Form-III regarding tax clearance certificate suffers from any legal infirmity. The High Court, in our opinion was in error in holding that Form-III is without jurisdiction and invalid. The tax clearance certificate referred to in Rules 22(2) and 84(2) is the certifi¬cate of the nature, as prescribed in Form-III. It cannot, there¬fore, be said that Form-III regarding tax clearance certificate suffers from any legal infirmity. The High Court, in our opinion was in error in holding that Form-III is without jurisdiction and invalid. Once it is held that Form-III contains a valid require¬ment regarding clearance of penalty dues the said requirement has to be fulfilled and while considering the application of the respondent for grant of temporary permit the concerned authority could impose the condition about payment of the outstanding amount of penalty. We are, therefore,unable to uphold the im¬pugned judgment of the High Court.” In this case, we find that petitioner has challenged the imposition of penalty of Rs.20,235/-, Annexure-3 in respect of payment of that penalty and the stipulations made in Annexure-5 to clear all the arrear dues for running the stage carriage on the basis of the permit granted. Section 14 of the Orissa Motor Vehicles Taxation Act provides the provision for recovery of tax and penalty and Section 18 thereof provides the forum of appeal by any aggrieved person. Learned Standing Counsel (Transport) states that because of the stay order passed by this Court on 23.8.1996 in Misc. Case No.7270 of 1996, notice to show-cause. Annexure-3 and the show-cause thereof, Annexure-4, are still pending for consideration before the taxing authority. When the original forum is yet to consider the show-cause filed by the petitioner, it is prema¬ture for us to take a decision without the designated authority considering the same. Under such circumstance, we decline to express any opinion on the demand made in the show-cause notice, Annexure-3.The Taxing Authority i.e. R.T.O., Baripada may do well to consider the show-cause of the petitioner in accordance with law and to dispose of the same within a period of two weeks from the date of receipt of copy of this order. If the petitioner desires to be heard in the matter, then he may approach the opp.party No.3 within two weeks hence and thereafter participate in the hearing. So far as the conditions stipulated in Annexure-5, in view of the ratio of the apex Court and requirement of law under the Rules, 1993 and Form-III, stipulation of such condition is not illegal and not liable to be quashed. The writ petition stands disposed of accordingly. So far as the conditions stipulated in Annexure-5, in view of the ratio of the apex Court and requirement of law under the Rules, 1993 and Form-III, stipulation of such condition is not illegal and not liable to be quashed. The writ petition stands disposed of accordingly. Requisites be filed by day after tomorrow by Regd. Post with A.D. along with copy of the writ petition and Annexures to communicate the writ to opp.party Nos.2 & 3. Petition disposed of.