IN HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 1502/2012 PERFETTI VAN MELLE HOLDING B.V Petitioner Through Mr Percy Pardiwala, Sr Advocate with Mr Nageswar Rao, Ms Sayaree Mallik and Mr Sandeep Karhail versus AUTHORITY OF ADVANCE RULING AND ANR Respondents Through Mr Rohit Madan with Mr Ruchir Bhatia and Mr Akash Vajpai CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE SIDDHARTH MRIDUL ORDER 30.09.2014 This writ petition is directed against ruling dated 09.12.2011 in AAR No.869/2010 given by Authority for Advance Rulings. One of pleas raised by petitioner was that said authority had not considered Double Taxation Avoidance Agreement between India and Portugal which is OECD country. learned counsel for petitioner submitted that any agreement between India and OECD country could be looked into while construing Indo-Netherlands Double Taxation Avoidance Convention. learned counsel for petitioner had also raised plea that memorandum of understanding concerning delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=201629&yr=2014 1/2 4/13/2020 delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=201629&yr=2014 fees for included services referred in Article 12(4) of Indo-USA DTAA concerning expression ?make available? was also not considered by Authority for Advance Rulings. It was submitted that said Authority refused to look into Indo-Portugese DTAA or Indo-USA DTAA and memorandum of understanding between India and USA on ground that only Indo-Netherlands DTAC needed to be looked into. learned counsel for respondent states that Authority for Advance Rulings was correct in not looking into Indo- Portugese DTAA, but insofar as Indo-USA DTAA is concerned, provision similar to that DTAA has been incorporated in Indo-Netherlands DTAC by virtue of paragraph 5 of Article 12 of same, whereby very same ?make available? clause, which is to be found in DTAA between India and USA read with memorandum of understanding connected therewith, has been incorporated into Indo-Netherlands convention by way of amendment on 30.08.1999, by notification No. S.O. 693 (E) [reported in (1999) 239 ITR (Stat) 56]. It is evident that Authority for Advance Rulings had not considered said amendment. In these circumstances, impugned Ruling cannot stand. same is set aside and matter is remitted to Authority for Advance Rulings to consider entire matter afresh uninfluenced by any observations made in impugned Ruling. writ petition stands allowed as above. BADAR DURREZ AHMED, J SEPTEMBER 30, 2014 SIDDHARTH MRIDUL, J SR $ 22 Perfetti Van Melle Holding B. V v. Authority of Advance Ruling And Anr