Finding regarding willful non-disclosure of turnover is a must.

SATHIADEV, J.

At the time of filing this writ petition, the petitioner was an Assistant Commissioner of Commercial Taxes, Dharmapuri. He states as follows : On 29th April, 1977, the Board of Revenue/second respondent framed a charge under rule 17(b) of Tamil Nadu Civil Service (C.C.A.) Rules, claiming therein that when he was J.C.T.O., Salem town (North), he has failed to give a specific finding as to wilful non-disclosure of turnover while levying penalty under section 12(3) of Tamil Nadu Act 1 of 1959, in respect of the assessment of Hotel Vinayaka for the year 1973-74, which resulted in the appellate authority setting aside the penalty, and thereby he had caused a loss of revenue of Rs. 14, 970 of the State. After his representations were filed and after following due procedure, the second respondent by order dated 5th December, 1977, awarded the punishment of stoppage of increment for one year with cumulative effect. He preferred an appeal and the Government by G.O. Ms. No. 1661 C.T. and R.T. Department dated 22nd October, 1979, dismissed it, with the modification that the stoppage of increment will not affect his pension. Aggrieved as against the said order, this writ petition is preferred claiming that his quasi-judicial function cannot be the subject-matter of a disciplinary action, and when his order was subject to appeal and revision, so long as the order passed by him is not reckless, mala fide or an utter lack of jurisdiction, he is conferred with immunity under section 49 of the Act, and no previous sanction having been obtained as provided therein, the entire proceeding is void. When the appellate authority had dealt with the matter, nothing precluded him from remitting the matter for passing fresh orders, in the event of non-compliance with the provisions of the Act, and himself having stated already in the order that there has been suppression of sales and penalty is to be imposed, the absence of the words "wilful non-disclosure", would not make the order passed by him either illegal or improper, and therefore, there has been a total misconception entertained by both the authorities that failure to use the words "wilful non-disclosure" was the main cause for loss of revenue to the State.

2. On behalf of the respondents, it is claimed that, under section 12(3) of the Act, there should be a specific and clear finding by the assessing authority, that there was wilful non-disclosure of turnover for imposing penalty. It was because of a lapse on his part in not using the relevant expressions, it had resulted in the cancellation of penalty, and as a public servant, himself having not discharged his statutory obligation properly and caused loss to the State, action could be taken under the C.C.A. Rules.

3. Mr. Ganapathy, learned counsel for the petitioner would first submit, that it is necessary to note that in passing the order of assessment dated 31st December, 1974, he had stated

"Recovery of four quarter-size note books (ABC and D) and four bundles of slips (ABC and D) revealed certain purchase and sale suppressions for the year 1973-74, relating to Hotel Vinayaka"

It is because of this finding, he levied penalty at 1 1/2 times the tax due, which amounts to Rs. 14, 970. He, therefore, submits that in the light of later decisions of this Court in T.C. No. 145 of 1972 and T.C. No. 1187 of 1979 (P. M. Perianna Pillai v. Commissioner, Board of Revenue (C.T.) 1980 (46) STC 94, for the purpose of sustaining the levy of penalty, it is not necessary that the officer imposing the penalty must mechanically reproduce the expression "not wilfully disclosed". In T.C. No. 1187 of 1979 [P. M. Perianna Pillai v. Commissioner, Board of Revenue (C.T.) 1980 (46) STC 94 it was held that, if the discussion of the order of the assessing authority clearly shows that he had applied his mind to the question as to whether the non-disclosure was wilful or otherwise, and had come to the conclusion that it was wilful, the omission to