Muhammad Tasneem v. Minister of National Revenue, 79 DTC 934, [1979] CTC 3158

The Chairman:—This is the appeal of Muhammad Tasneem from the income tax assessment in respect of the 1977 taxation year during which the appellant sought to deduct the amount of $4,760 as an amount claimed to be expended for the support of his sisters. The case, I think, can be considered as a borderline case in the sense that there is some evidence of money having gone from Ottawa to Pakistan. It is by far not the best proof but I am not sure what the department would have decided had they been made privy to the evidence that was brought before the Board today. I agree that in some of the evidence, the receipts, only two indicate the appellant sent the amount to Pakistan, but nevertheless, we are faced with a statement given under oath and I presume the appellant is not unaware of the importance of that. When there is a revealing of some proof as to the monies having been transferred to Pakistan, we have to take it for granted that they went as Stated into the appellant’s father’s account. There is again not a firm proof and perhaps other courts would not accept such evidence, however, I think there is a sufficient latitude on the Board to give the appellant the benefit of the doubt and I will accept that the appellant did send the amount of money to Pakistan.

I think, considering this a borderline case, and coming to that decision is showing the appellant considerable latitude, if I may put it that way. Although the Board is not entitled to make a decision on the basis of anything else but the Act, I am basing my decision on the fact that there is some kind of evidence which the appellant brought in order to establish his point.

As far as the second point raised by the respondent, that the appellant’s parents were not dependent on him, the evidence was, and there was no evidence to the contrary either, that the father, who was in the business of selling shoes, sold the business in 1974 or 1975 and received somewhere around $1,000 for the business and he invested the money in the home, a house where there are eight children and two parents living in a one-room home. The $1,000 went into the construction of a second room.

We have a doctor’s certificate in Exhibit A-2, here again the probative value of it is certainly not strong; however, on the other hand the Board can- not ignore completely the existence of this document. In it the doctor claims that the appellant’s parents are unable to earn a living. Whether it is hypertension or otherwise, it doesn’t say, and it is dated 1979, as pointed out by the respondent and we are dealing with the 1977 year. However, there is also in evidence the fact that—and this was brought out by the respondent himself—that somewhere around 1975 the father had stopped work because the children had asked him to. They thought he had worked long enough and hard enough and they would look after him.

So I cannot believe that I am wrong in law or in fact in thinking that the Board cannot ignore the evidence that was presented, even though it is not the best type of evidence that should be brought before the Board.

As far as the amount of money concerned, there seems to be some evidence, sufficient evidence to indicate that the money that was sent by the appellant to Pakistan went into an account which belonged to his father in Pakistan. The amounts of money, as explained by the appellant, were used for the general household expenses, part of which went for the education of the brothers and sisters.

In the Karimi case, it is quite true that the brothers and sisters cannot be considered as dependents if their parents themselves have not been considered as dependents. On the basis of the evidence I have, I am inclined to believe that the parents were depending on the appellant or his brother who earlier—there is some evidence that he had sent money to the parents.

There is only one area which bothers me and that is the two sisters and the brother who were 21 in 1977, over 21. I am not satisfied that the appellant has established that those two sisters and the brother who were over 21 in 1977 were going to school and I do not accept that evidence.

As I mentioned earlier, this is a borderline case. I agree with counsel for the respondent when he says that application of exemption taxation rule that this construction should be strictly applied and that is, I think, unquestioned. Where the difficulty arises is when there is only partial evidence capable of supporting a statement made under oath. This is exactly what has happened. There is enough evidence to confirm what the appellant stated under oath and one has to be very careful too, in not taking on its face value, what is being said and written, unless it is absolutely clear that the witness is not saying exactly the truth. In this case, the difficulty is in trying to strike a balance between the two and I have to decide that, although it is not the best proof, the appellant has succeeded in establishing some of the things which he had claimed.

So my decision in this matter is that I allow the appeal in part and refer the matter back to the Minister for reassessment on the basis that the appellant did send an amount to Pakistan for the purpose of helping the parents who were dependent and the younger sisters and brother for their school, but would not include any amounts paid for the two sisters and the brother who were over 21 in the 1977 taxation year.

Appeal allowed in part.