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 comes 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. 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.
(3.) 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.;