Page 22 - GSTL_27th August 2020_Vol 39_Part 4

J78 GST LAW TIMES [ Vol. 39

LEGISLATIVE COMPETENCE OF RULES
36(4) AND 86A OF CGST RULES, 2017
By
Rachit Kumar Agarwal
CHARTERED ACCOUNTANT

A power to make rules is in the nature of a sub-
ordinate legislation and does not stand on the same foot-
ing as the power of the Legislature to enact laws so as to
affect other statutory provisions.
Power of the Legislature to delegate a power to make rules is for the
purpose of effectuating the objects of the Act. It is a common feature of modern
legislative enactments to lay down in the sections of the Act, the principles and
the policy of the Legislature, leaving out details to be filled in and worked out by
regulations or rules made either by the executive Government or by some other
authority.
Section 164 of CGST Act, 2017 - Power of Government to make rules
(1) The Government may, on the recommendations of the Council, by noti-
fication, make rules for carrying out the provisions of this Act.
(2) Without prejudice to the generality of the provisions of sub-section (1),
the Government may make rules for all or any of the matters which by this
Act are required to be, or may be, prescribed or in respect of which provisions
are to be or may be made by rules.
Rule 36(4) of CGST Rules, 2017 was inserted vide Notification No. 49/2019-C.T.,
dated 9-10-2019 subsequently amended vide Notification No. 30/2020-C.T., dated
3-4-2020.
Rule 86A of CGST Rules was inserted vide Notification No. 75/2019-
C.T., dated 26-12-2019.
The above rules has been inserted in exercise of the powers conferred to
the Central Government by Section 164 of the CGST Act, 2017.
As per Clause 164 of the Central Goods and Services Tax Bill, 2017 which was
introduced in the Lok Sabha seeks to empower the Central Government to make
rules.
Clause 164 of CGST Bill, 2017 have not conferred the power to impose
restrictions and conditions on availing the credit of Input Tax. Clause 164 of
CGST Bill, 2017 gives the power to make procedural rules only.
Rule 36(4) of CGST Rules, 2017 has imposed restriction on the availment
of the credit of input subject to uploading of the invoices by the supplier is with-
out legislative competence. Condition for the availment of the credit under Rule 36(4)
of CGST Rules, 2017 that credit of input tax for the invoices not uploaded by the supplier
shall be limited to 10% of subject to invoices uploaded by the supplier.

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