Docket: 2010-3310(IT)APP
BETWEEN:
VIJAY MEHTA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on December 16, 2010 at Toronto, Ontario
Before: The Honourable
Justice Valerie Miller
Appearances:
|
For the Applicant:
|
The
Applicant himself
|
|
Counsel for the Respondent:
|
Sandra K.S. Tsui
|
____________________________________________________________________
ORDER
The application for an Order of this Court to extend the time in
which to file a Notice of Appeal for the 2005 and 2006 taxation years is
allowed.
This Court orders that the time within which an appeal may be
instituted is extended to the date of this Order and the Notice of Appeal,
received with the application, is deemed to be filed on the date of this Order.
Signed at Ottawa,
Canada, this 21st day of January 2010.
“V.A. Miller”
Citation : 2011TCC38
Date: 20110121
Docket: 2010-3310(IT)APP
BETWEEN:
VIJAY MEHTA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
This is an application
for extension of time to file a Notice of Appeal. Mr. Mehta wants to appeal
assessments which were issued under the Income Tax Act (the “Act”)
for the 2005 and 2006 taxation years.
[2]
Mr. Mehta was
originally assessed for the 2005 and 2006 taxation years on March 27, 2006 and
October 1, 2007 respectively. Both of these years were reassessed by notices
dated October 2, 2008. Mr. Mehta objected to the reassessments by notices of
objection dated October 27, 2008 and received by the Canada Revenue Agency
(CRA) on November 20, 2008. The reassessments were confirmed by notice dated
November 9, 2009 and sent by registered mail on November 10, 2009. The time
period for filing a notice of appeal expired on February 8, 2010.
[3]
According to the Notice
of Confirmation, the following expenses were disallowed:
|
|
2005
|
2006
|
|
Rental expenses
|
$ 7,501
|
$ 5,312
|
|
Business expenses
|
|
$67,032
|
|
Child care expenses
|
|
$ 6,050
|
[4]
An application for
extension of time to appeal will be granted if Mr. Mehta satisfies the
requirements given in subsection 167(5) of the Act. In accordance with
section 169 of the Act, the application must be made within one year of
February 8, 2010. Mr. Mehta must demonstrate that within the time from November
10, 2009 to February 8, 2010, he was unable to act or to instruct another to
act in his name, or that he had a bona fide intention to appeal. He must
also demonstrate that it would be just and equitable to grant the application;
that the application was made as soon as circumstances permitted; and, that
there are reasonable grounds for the appeal.
[5]
I have reviewed all of
the evidence presented at the hearing of this application and I have concluded
that Mr. Mehta has satisfied all of the requirements of subsection 167(5) of
the Act. His application for extension of time was received by the court
on October 21, 2010 which was well within the time allowed by the Act.
Mr. Mehta stated that he intended to appeal the reassessments of his 2005 and
2006 taxation years and he had engaged Mr. Abid Okadia to represent him. Mr.
Mehta was surprised when he was told by Greg Reid, a collections officer with
the CRA, that his 2005 and 2006 taxation years had not been appealed.
[6]
The application for extension
of time was made as soon as circumstances permitted. According to Mr. Mehta, he
learned on March 25, 2010 that his 2005 and 2006 taxation years had not been
appealed to this court. He attempted to file this application in September,
2010, but he had the incorrect address. He successfully filed the application
on October 21, 2010. I do not find that this time period shows unreasonable
delay[1]. There are
reasonable grounds for the appeal as Mr. Mehta’s 2005 and 2006 taxation years
were reassessed to disallow numerous expenses which he had claimed.
[7]
The Respondent filed
three affidavits with the court to support its position that this application
for extension of time should not be granted. I have inferred from Mr. Mehta’s
evidence and the affidavits of Greg Reid and Sarah Silva, an Appeals Officer
with CRA, that Mr. Mehta was duped by his representative. Mr. Okadia told Mr.
Mehta that he had met with the CRA officials when he had not; he told Mr. Mehta
that he had sent documents to the CRA when he had not.
[8]
It was Mr. Mehta’s
evidence that he had given all of his documents to his representative. He
further stated that he did not know what to do about his tax issue. I found Mr.
Mehta to be credible.
[9]
Hershfield J in Meer
v. Canada[2]
set out the considerations in making a determination whether it is ‘just and
equitable’ to grant an extension of time. He stated:
[20]
... Counsel for the Respondent argued that the requirement that
the granting of an extension be just and equitable in the circumstances was a
separate test that must be met as a condition to granting the application. Such
condition does appear in subsection 167(5) as a separate test. But the
condition is derived from the reasons for and circumstances of the request. The
reasons and circumstances here do not give rise to any asserted injustice.
There has been no assertion here of foul play, dishonesty or prejudice. I can
find no cases, nor has the Respondent's counsel offered any cases, that would
support the contention or give an illustration of a situation where all the
other conditions for the granting of the application are met and it is still
found not just and equitable to grant the application. The reassessment is not
adversely affected by granting the application except that the reassessment can
then be dealt with on its merits. In these circumstances it strikes me as
inequitable not to apply the principle set down in Seater v. R., [1997]
1 C.T.C. 2204 wherein Judge McArthur concludes that it is preferable to have a
taxpayer's issues decided on their merits than having them dismissed for missed
time limits in the Act.
[10]
I have concluded that
it is just and equitable to grant this application for extension of time. I
have weighed the harm to Mr. Mehta of disallowing the application against the
harm to the Respondent if the application were allowed[3]. It is clear
that the harm to Mr. Mehta would be significant. I have considered the amounts
that were disallowed and would be at issue in the appeal.
[11]
For all of these
reasons, the application for extension of time is allowed.
Signed at Ottawa, Canada, this 21st day
of January 2010.
“V.A. Miller”
CITATION: 2011TCC38
COURT FILE NO.: 2010-3310(IT)APP
STYLE OF CAUSE: VIJAY MEHTA AND
THE
QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: December 16, 2010
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: January 21, 2010
APPEARANCES:
|
For the
Applicant:
|
The Applicant himself
|
|
Counsel for the
Respondent:
|
Sandra K.S. Tsui
|
COUNSEL OF RECORD:
For the Applicant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
[1] Fagbemi v. R., 2005 D.T.C. 995
(TCC) at paragraph 9
[2] [2001] T.C.J. No. 321
[3] Supra, footnote 1 at paragraph
10
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