JUDGMENT :

A.K. GOEL, J.

1. The question raised for consideration is whether the petitioner-bank is covered by definition of "dealer" under Section 2(12) of the Orissa Value Added Tax Act, 2004 (OVAT Act) and liable to value added tax on sale of pledged assets effected by it for recovery of loan.

2. The case set out in this petition is that the petitioner has been constituted under the State Bank of India Act, 1955. Its Stressed Assets Management Branch initiated action under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for enforcing the security interest to realize the outstanding loan dues from the borrowers whose account had been classified as Non-Performing Assets (NPA). The movable assets of such borrowers were put to auction under Rule 6 of the Security Interest (Enforcement) Rules, 2002 and sale proceeds were appropriated to the loan account of the borrowers. The Sales Tax Officer, opposite party No. 4 issued notice to the Bank to produce the accounts. In reply, stand of the bank was that it was not covered by the definition 'dealer' and was not liable to be assessed under the OVAT Act. In the auction conducted by the petitioner, no element of 'sale' was involved. However, rejecting the stand of the petitioner vide impugned order dated 12.12.2013, demand of tax and penalty was raised which according to the petitioner-Bank is illegal and without jurisdiction. The Assessing Authority has relied upon the judgment of this Court dated 12.3.2012 in W.P.(C) No. 3127 of 2012 (M/s. Indusind Bank Ltd. v. Principal Secretary to Government, Finance Department, Government of Odisha) and order of West Bengal Taxation Tribunal in ICICI Bank Ltd. v. Joint Commissioner, Sales Tax, Central Section, Kolkata) (2013) 31 VST 178. According to the petitioner, in absence of clear provision specifying the subject of tax, person liable to pay tax and the rate at which tax is to be paid, no tax could be levied.

3. We have heard Sri R.K. Rath, learned Senior Counsel for the petitioner and Mr. R.P. Kar, learned Standing Counsel (Commercial Department) for the opposite parties.

4. Supporting the stand taken in the writ petition, Mr. Rath, learned Senior Counsel for the petitioner submits that unless the sale is in the course of business of a person, the seller is not covered by the definition of 'dealer'. In support of this submission, reliance has been placed on the judgment of Hon'ble the Supreme Court in State of Tamil Nadu and another v. Board of Trustees of the Port of Madras, (1999) 4 SCC 630, wherein, definition of 'dealer' under Section 2(g) of the Tamil Nadu General Sales Tax Act, 1959 was interpreted in the context of sale of unclaimed and unserviceable goods by the Madras Port Trust constituted under the Major Port Trust Act, 1905. Referring to the scheme of Port Trust Act, the Hon'ble Supreme Court observed that Port Trust was not constituted to carryon business of sale of goods. The sale of goods was incidental to the 'non business' activity of the Port Trust. Since the main activity of the Port Trust was not business, its incidental activity also did not amount to business, unless the Revenue could establish an independent intention by showing the volume of such business to be large enough in comparison to the main activity. Learned counsel submits that situation of sale transaction by the Bank was at par with the Port Trust and in respect of such sale, the Bank was not a dealer. He further submits that view taken by this Court in Indus Bank was contrary to above decision of Hon'ble Supreme Court and required reconsideration.

5. On the other hand, learned counsel for the Revenue supports the order of assessment. He submits that in view of judgment of this Court in M/s. Indusind Bank Ltd., learned Commissioner of Sales Tax rightly held the transaction of auction sale effected by the bank to be taxable for levy of Value Added Tax. Judgment in Port Trust ca