S.N. Dwivedi, J.
1. This reference has been made by the Judge (Revisions), Agra, under Section 11(1) of the U. P. Sales Tax Act at the instance of the assessee, and the following question has been referred by him for the opinion of this court :
Whether under the circumstances and facts of the case the activity of the assessee, managing committee, in selling bhog constitutes business ?
2. The assessee is the managing committee of the temple of Sri Bankey Behari Ji, Brindaban, Mathura. The puja, sewa and bhog of the Deity, Sri Bankey Behari Ji, installed in the temple is looked after by the managing committee constituted under the scheme framed by the Munsif, Mathura. According to the rules and regulations concerning the offering of bhog by worshippers and devotees to the Deity, no one is permitted to make offerings of bhog brought from any place other than the bhog bhandar of the temple. The procedure is that when a devotee or a worshipper cornes to the temple, first he goes to the office of the managing committee. There he deposits whatever amount he pleases for bhog. Thereafter he comes to the bhog bhandar of the temple. The person in charge of the bhog bhandar issues bhog to the pujari of the temple and not to the devotee or the worshipper. The pujari offers the bhog to the Deity. He retains some quantity out of it and returns the rest. The quantity which he retains with him is left to his discretion. The devotee or the worshipper has no voice in that matter.
3. The assessing authority assessed tax on the turnover of bhog for the assessment years 1957-58 to 1965-66. In appeal, the appellate authority set aside the order of the assessing authority and recorded a finding that the primary object of the managing committee of the temple was to provide for the worship of the Deity. It was only incidental to that object that the worshippers were required to make an offering of the bhog prepared in the bhog bhandar of the temple. The devotees and the worshippers do not come to the temple with the intention of making purchases. There was no bargaining .between them and the person in charge of the bhog bhandar. The quantity of bhog offered to a worshipper or a devotee was never settled between the said parties. Whatever quantity the devotee or the worshipper received from the pujari, he accepted it without demur. The quantity of bhog bore no proportion to the cash deposited by the devotee or the worshipper. The devotees or the worshippers were desirous of offering bhog to the Deity and accepted whatever prasad was offered to them by the pujari. The temple did not carry on the business of selling sweetmeats. The intention of buying and selling was lacking.
4. There was a revision by the department against the order of the appellate authority. In revision, the Judge (Revisions) reversed the order of the appellate authority and restored the order of the Sales Tax Officer. It is, however, important to notice that the Judge (Revisions) has not upset the findings of fact recorded by the appellate authority. He has grounded his opinion on a very simple and apparently neat logic. According to him, there are two ingredients of sale, namely, (i) there should be a transfer of property and (ii) the transfer should be for consideration. This is one premise. The other premise is that the sale of bhog was not casual. There was a continuous activity and accordingly the managing committee of the temple was carrying on a business. As the committee was carrying on the business of sales of bhog according to him, he held that it was a dealer within the meaning of that expression in the Sales Tax Act and accordingly liable to tax.
5. It appears to us that both of his premises are clearly wrong on the facts and circumstances of the case.
6. 'Dealer' is defined in Section 2(c) of the U.P. Sales Tax Act as 'any person...carrying on the business of buying or selling goods....' 'Sale' is also defined in Section 2(h) of the Act as meaning 'any transfer of property in goods for cash or deferred payment or other valuable consideration'. According to the definition of the word 'dealer', the managing committee of the temple may be assessed to tax only when it is shown that (i) it sells bhog to the devotees and the worshippers and (ii) it carries on the business of selling bhog to them. If on the facts and circumstances of the case it cannot be held that the committee sells bhog to the devotees and worshippers, it cannot be taxed. Again, even if it is found that it sells bhog to them, it cannot be assessed, if it is found that it does not carry on the business of selling bhog to them.
7. We shall first see whether the committee sells bhog to the devotees and the worshippers. Sale is a contract. Contract is an agreement enforceable at Jaw. An agreement is a set of promises between two or more parties. Generally speaking, the idea behind a contract is of bargain, but here according to the findings recorded by the appellate authority, which have not been upset by the Judge (Revisions), there is no bargain at all. Neither the devotees nor the person in charge of the bhog bhandar negotiate and conclude a bargain because there is no settlement about the quantity of bhog which will be offered to the devotee in consideration of the cash received from him. We think that the whole idea of offer and acceptance underlying the contract is absent here.
8. It is difficult to believe that the devotee who enters the portals of the temple in the spirit of utter resignation and submission to the Deity for receiving its blessings and for spiritual bliss would have any intention of making a bargain with the Deity, who is the ultimate owner of the bhog. It seems to us that the proper and reasonable inference to be drawn from the finding recorded by the appellate authority is that the worshipper or the devotee makes a cash offering to the Deity and in return gets prasad from the pujari. That is the true substance of what happens in the temple. So we hold that there is no sale of bhog to the Deity.
9. We are also of opinion that the managing committee of the temple does not carry on the 'business' of selling bhog. The word 'business' in Section 2(c) connotes a commercial activity, but here there is no commercial activity at all. The bhog belongs to the Deity. It is offered to the devotee or the worshipper on his making a cash offering to the Deity. The activity of providing bhog on payment of cash is incidental to the fundamental activity in the temple of worshipping and making offerings to the Deity. For the convenience of the devotees and worshippers and for the sake of purity of the bhog offered to the Deity, the committee has adopted the procedure of receiving cash in the first instance and then issuing bhog to the pujari.
10. In Evangelical Literature Service v. Commissioner of Commercial Taxes, Board of Revenue, Madras  15 S.T.C. 825 the Evangelical Literature Service was selling Bible and other Christian religious books. It was assessed to sales tax by the assessing authority. The appellate authority reversed the order, but in revision it was maintained by the revising authority. The revising authority gave somewhat similar reasonings as are given by the Judge (Revisions) in the case before us. But the Madras High Court quashed the order of the Judge (Revisions). The court said :
In this case, the main object of the Society, as seen from the Memorandum of Association and Rules, is what is contained in Article 3(a), namely, printing, publishing and distribution of Christian Literature.... If the object of the Society, as it is, is merely to print, publish and distribute Christian Literature and is not, as I think, commercial in character, it is obvious that the object does not become commercial because it is to be achieved by the normal business means. I fail to see any trade or commercial motive in the objects of the Society.
11. The court found that the Society was not carrying on the business of selling literature, because it was not engaged in a commercial activity. This decision supports the view that we are taking in this case.
12. In view of the foregoing discussion, our answer to the question referred to us is that the assessee is not a dealer within the meaning of Section 2(c) of the U.P. Sales Tax Act and it does not carry on the business of selling bhog. The assessee shall get costs which we assess at Rs. 100. There shall be one set of costs.