Milliken, DCJ:—This is an appeal by the Crown from a dismissal of an information against Romeo’s Trucking Ltd of Prince Albert, Saskatchewan, charging that Romeo’s Trucking Ltd did on or about November 21, AD 1978 at Prince Albert, in the Province of Saskatchewan, fail to file a return required by or under the Income Tax Act to wit: income tax return on Form T2 for taxation year 1977, following demand therefor dated September 19,1978 made upon it pursuant to subsection 150(2) of the Income Tax Act, contrary to subsection 238(1) of the Income Tax Act, RSC 1952, c 148, as amended.
The issue concerned in this appeal is whether evidence from the accountant of Romeo’s Trucking Ltd, that he did mail during the first week of October, 1978, a return for the year 1977 from a post office in Prince Albert, rebutts the presumption created by an affidavit filed by an officer of the Department of National Revenue in charge of the appropriate records in the Saskatoon District Taxation Office.
Art Perkins testified that he was a public accountant and that one of his clients was Romeo’s Trucking Ltd and that he had been requested by Romeo Quirion, president of Romeo’s Trucking Ltd, to prepare a taxation return for the year 1977, which return was prepared and mailed by him in the first week of October, 1978, addressed to the Saskatoon Taxation Office.
I can find no reason to disbelieve Mr Perkins that he did in fact send the required return in the first week of October, 1978 by mail to the Saskatoon Taxation Office, Department of National Revenue. Subsection 244(7) of the Income Tax Act provides as follows:
Whereby this Act or a regulation, a person is required to make a return, statement, answer or certificate, an affidavit of an officer of the Department of National Revenue, sworn before a commissioner or other person authorized to take affidavits, setting out that he has charge of the appropriate records and that after careful examination and search of the records he has been unable to find ina given case that the return, statement, answer or certificate, as the case may be, has been made by such person, shall be received as prima facie evidence that in such case that person did not make the return, statement, answer or certificate, as the case may be.
It is my opinion that subsection 244(7) provides that if by affidavit a proper officer states that upon careful examination and search of the records no return has been made, then such affidavit shall be received as prima facie proof that a return was not made as required. The evidence of the affidavit thus begin prima facie evidence which prima facie evidence can be rebutted by evidence to the contrary which in this case, in my opinion, was given, therefore the presumption under subsection 244(7) fails and there is no evidence against Romeo’s Trucking Ltd that it did not make the return when required to do so.
The appeal by the Crown is dismissed.