On recognition as illegal and cancellation of the Committee's order to eliminate the identified violations
No. 6001-24-00-6ap/1843 dated January 10, 2025
Plaintiff: JSC International Airport (hereinafter referred to as the Company)
Respondent: The Committee
The subject of the dispute: on recognition as illegal and cancellation of the order on elimination of the revealed violations
Review of the plaintiff's cassation appeal. PLOT:
From January 12 to April 18, 2023, the Committee conducted a state compliance audit in the Company on the use of state and quasi-public sector assets.
Based on the audit results, an audit report was prepared on April 18, 2023, to which the Company filed an objection.
On August 10, 2023, the Appeals Commission decided to partially satisfy the objection. Of the 27 points of violations identified in the audit report, 5 points (No. 4,5,8,17,21) of the audit object's arguments were confirmed, 5 points (№2, №7, №10, №11, №13) The objections have been partially confirmed.
Financial violations totaling 429,349.7 thousand tenge were identified, of which 395,415.5 thousand tenge are to be reimbursed to the budget, and 33,934.2 thousand tenge are to be restored by accounting. Violations of a procedural nature in the amount of 292,477.3 thousand tenge (12 points) were established.
By order of the Committee on November 23, 2023, the audit opinion was approved, and the appealed order was issued to eliminate the identified violations and to consider the responsibility of those who committed them (hereinafter referred to as the Order).
The Company is required to do so by December 24, 2023: 1) reimburse (transfer) to the budget the amount of 395,415.5 thousand tenge for the budget classification code 206108; 2) restore the accounting amount of 1,983.3 thousand tenge; 3) consider disciplinary liability of officials who committed the violations.
Having disagreed with the Order, the Company appealed to the court with the above-mentioned requirement.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: in order to implement the project "Modernization of the Company's infrastructure" (hereinafter referred to as the Project) under the republican budget program 021 "Increase in the authorized capital of the Company", a financial and economic justification (hereinafter referred to as the FEO) in the amount of 2,888,676,078 tenge was developed and approved. At the same time, the cost of the equipment is determined by the Company on the basis of commercial proposals.
According to the industry conclusion of the Ministry of Industry and Infrastructure Development (administrator of the budget program), the Project was positively assessed for the FEO and 2,888,676.0 thousand tenge was allocated to the Company.
In fact, the Project was implemented by the Company for a total amount of 3,336,998,147 thousand tenge, of which 2,888,676.1 thousand tenge were funded from the budget, and 448,322.1 thousand tenge were funded from its own funds.
The main purpose of the Project was to purchase 3 components (1 component - a telescopic ladder for the VIP-Severny term in the amount of 1 piece, 2 component - a compact sweeper and purge machine in the amount of 4 pieces and 3 component - Equipment (pneumatic fabric lifts, airfield tow truck, compressor, KUNZ Easy Trak, measuring complex 10 pieces) in the amount of 2,888,676.0 thousand tenge.
However, the Company used the allocated budget funds in the amount of 2,888,676.0 thousand tenge to purchase only 2 components (a telescopic ladder for the VIP-Severny term in the amount of 1 piece, a compact sweeper in the amount of 4 pieces).
Thus, the Company's Project goal was not achieved, and the unjustified use of budgetary funds amounted to 395,415.5 thousand tenge.
The Company did not adjust the FEO of budget investments.
At the same time, according to the FEO of the Project, the purchase price for compact sweepers amounted to 234 000,0 thousand tenge per unit, the total cost for 4 units of equipment was 936 000,0 thousand tenge. While the Company purchased these machines at a price of 340 646.0 thousand tenge per unit, for a total amount of 1,362 584.2 thousand tenge.
The excess amounted to 426 584.2 thousand tenge.
Regarding the restoration of the accounting amount of 1,983,3 thousand tenge, the courts correctly indicated that according to sub-paragraphs 1) and 2) of paragraph 31 of the Remuneration Rules, additional payment for the operation and management of telescopic ladders, for the management of apron mechanization facilities: an additional payment of 50% is established, instead of the amount of 80% indicated in the arguments of the Company. Thus, the amount of the established surcharges was overestimated by 30% or overcharged for a total amount of 1983.3 thousand tenge.
The audit was conducted in compliance with the requirements of the Law of the Republic of Kazakhstan "On State Audit and Financial Control".
All the arguments of the author of the cassation appeal are identical in their content, meaning and purpose to the arguments given in the courts of the first and appellate instances. These arguments were reviewed by the court of appeal and given a proper legal assessment. No new arguments are given in the cassation appeal.
Since the circumstances of the case were established correctly, and the rules of law were applied correctly by the court of appeal, the collegium found no grounds for canceling or changing judicial acts.
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