JUDGMENT : (BECHU KURIAN THOMAS, J.) Petitioners challenge an order of assessment dated 30.08.2022, assessing petitioners’ building to tax under the Kerala Building Tax Act, 1975. 2. Petitioners’ commercial building having an extent of 1328 sq.m, was subjected to an assessment on 01.01.2016 under Section 5 of the Kerala Building Tax, 1975 [for short, ‘the Act’] imposing an amount of Rs.6,01,200/-. The date of completion of the said building was shown as 28.10.2015. While so, on 06.05.2016, petitioners obtained permission to construct a trusswork over the roof of the building. After completion of the trusswork, Ext.P6 order of assessment was issued on 01.03.2018, imposing building tax of Rs.2,80,800/- due to the increase in the plinth area of the building on account of the trusswork. The total area was thus calculated as 2604.08 sq.m, including an addition of 1276.08 sq.m. 3. Petitioners challenged the order of assessment dated 01.03.2018 before this Court in W.P(C) No.9660/2018, pointing out the absence of any notice given to them before issuing the said order of assessment. Petitioners had also, in the meantime, preferred an appeal to the appellate authority, against the order of assessment dated 01.03.2018. By judgment dated 07.06.2018 in W.P(C) No. 9660/2018, the assessment order was set aside and a fresh consideration was directed. In the meantime, the appeal was taken up for consideration, and despite noticing the judgment of this Court in W.P.(C) No.9660/2018, the appellate authority confirmed the order of assessment. It is curious to note that the order of assessment dated 01.03.2018 which had already been set aside by this Court, was confirmed by the appellate authority, even after noticing that judgment. Petitioners were thus compelled to approach this Court once again, in W.P.(C) No.25557/2020, and by judgment dated 20.11.2020, the order of the appellate authority was set aside and the assessing officer was directed to consider the matter as directed in the judgment in W.P.(C) No.9660/2018. 4. Pursuant to the above direction, the assessing officer reconsidered the matter and issued the impugned order dated 30.08.2022, assessing petitioners’ building to tax under the Act calculating the plinth area as 2610.18 sq.m by including the area under the trusswork also as part of the plinth area. Without preferring any appeal, petitioners have approached this Court under Article 226 of the Constitution of India. 5. Without preferring any appeal, petitioners have approached this Court under Article 226 of the Constitution of India. 5. Petitioners contended that the area under the roof cannot be included in the plinth area and it cannot be subject to assessment under the Act as it is not fully enclosed. Petitioners have also claimed the benefit of levy of only 50% of the rate of tax for the building due to the rain water harvesting facility and solar panel installations provided on the building on the basis of Note (3) to Schedule I of the Act. 6. A counter affidavit has been filed by the third respondent, stating that the area under the trusswork is also liable to be taxed and further that petitioners are not entitled for any reduction in the rate of tax at 50% due to rain water harvesting facility and solar panel installations since the Government has not yet notified, the measurements and specifications in the Gazette. 7. I have heard Adv. Gini George, on behalf of Adv.Nirmal S., the learned counsel for the petitioners and Dr.Thushara James, the learned Senior Government Pleader. 8. The question that requires resolution is whether the assessment of building tax under the Act is liable to be interfered with or not. The contention raised by the petitioners regarding the entitlement for reduction in rate of tax at 50% on the basis of Note (3) to Schedule I of the Act, will arise only if there is any construction work carried out after installation of the solar panels. Concededly, petitioners carried out installation of the solar panels only on 10.08.2017 as per Ext.P11. The claim for benefit of reduced rate of tax based on the installation of the solar panels and water harvesting facility will arise only if there is any additional construction, compelling the building to be subjected to tax under the Act as on 10.08.2017. 9. The building was already subjected to tax under the Act treating the date of completion as 28.10.2015. On that day, the solar panel installations or water harvesting facility was not in existence and hence the question of any reduced rate of tax did not arise in that assessment. Petitioners had not claimed such a reduced rate as well at that time. On that day, the solar panel installations or water harvesting facility was not in existence and hence the question of any reduced rate of tax did not arise in that assessment. Petitioners had not claimed such a reduced rate as well at that time. The question of reduced rate of tax arose due to the unilateral assessment of the building to tax under the Act, after a roof was constructed as a trusswork pursuant to the permission obtained on 06-05-2016. 10. Concededly, the roof is constructed as a trusswork and it is not fully enclosed. The impugned order itself observes that the area where the trusswork has been put up is not fully enclosed though some materials are kept on the terrace portion. A trusswork constructed over the terrace of a building, is intended to protect the building from the harmful effects of weather. Such a roofing by itself, cannot result in the portion underneath the roof being assessed to tax under the Act as a residential or commercial building. The purpose of such a roof is to reduce the effects of sweltering heat hitting the concrete roof or as a protection from incessant rains. The situation would however be different if, after constructing the roof, the terrace portion is completely enclosed enabling that area to be used as a residential portion or for some commercial purpose. In such situations, the plinth area of the terrace portion should also be included for assessment. 11. In the decision in Padmanabhan K. v. State of Kerala and Others [ 2009 (1) KLT 295 ], it was held that, unless the roof of the terrace is completely enclosed, it cannot be treated as part of the plinth area for the purpose of assessment under the Act. This Court went on to hold that a mere covering of a roof to protect the building from rain and sun does not make the terrace part of the plinth area, to be assessed to tax irrespective of whether the building is residential or commercial. The observations in the said decision being relevant are extracted below: “In other words, an open area with roof cannot be treated as part of the residential building as it is unfit for residential purpose. The observations in the said decision being relevant are extracted below: “In other words, an open area with roof cannot be treated as part of the residential building as it is unfit for residential purpose. Even though the terrace covered with roof may be used for several purposes such as drying of clothes, for recreational purposes, etc., such use cannot be treated as use for residential purpose. Therefore, open terrace even after giving roof to it does not become part of plinth area used for residential purpose…….. A roof cover prevents absorption of heat by the building and therefore, unnecessary air conditioning is avoided. Similarly when the building is protected from heat and rain, maintenance cost is reduced and it's life is also extended. In fact, concrete buildings absorbing heat in the day time and radiating the heat to the atmosphere in the night causes increase in atmosphere temperature even in the night causing discomfort not only to the occupants but to the neighbours. .………A roof cover on top of the terrace, whether it be made of metal, fibre, or tile, makes collection of clean rain water easy. Therefore, in public interest, construction of roof cover over concrete buildings is something which should be encouraged by providing all incentives by the Government. However, I make it clear that if such terrace in full or part is enclosed with bricks, walls, grills, wood or the like, such enclosed area will become part of the residential area of the building for the purpose of assessment of building tax and luxury tax under the Act.” 12.Yet again, a Division Bench of this Court had, in State of Kerala and Others v. M/s.Southern Fisheries Corporation 2011 (1) KHC 794 considered a similar issue and held that mere covering of roof to protect the building from sun and rain will not make the plinth area of the terrace a part of the building for assessment under the Act. 13.In the instant case, as noted earlier, it is evident from the order of the assessing officer itself, that the area beneath the trusswork is not fully enclosed. The assessing officer has come to a finding that the area is only partially enclosed It is noticed from the photographs produced by the petitioners that the partial enclosure referred to is the parapet, which forms part of the terrace portion. The assessing officer has come to a finding that the area is only partially enclosed It is noticed from the photographs produced by the petitioners that the partial enclosure referred to is the parapet, which forms part of the terrace portion. A parapet or a railing on the terrace portion of a building is a safety requirement and for some types of constructions, it is mandatory under the Kerala Municipality Building Rules, 2019. Merely because the terrace portion is covered by a roofing sheet and has a parapet, the said portion cannot be included as part of the plinth area of the building. Further, if the area under the roof is not fully enclosed and used either for residential or for commercial purposes, such an area cannot be assessed to building tax. 14.From a reading of the impugned order, it is evident that the area beneath the trusswork has not been included as part of the plinth area for the purpose of assessing tax since it was not fully enclosed. The assessing authority has no case that the terrace portion is being used for residential purposes or for any commercial activity, directly or indirectly. Petitioners in the instant case, have contended that the materials kept in the terrace portion of the building are only batteries and other materials required for the solar panels and that the said portion is not utilized for the convenient enjoyment of the building. 15.Considering the observations and findings in the impugned order, I am of the view that since the area under the roof is concededly not fully enclosed, it cannot be subjected to tax under the Act. Further, merely because some materials are kept in the terrace portion of the building, unless those materials are connected to the commercial activity being carried on in the remaining portion of the building like the stock-in-trade or otherwise, that cannot result in the area under the trusswork to be treated as plinth area to be assessed to tax under the Act. Similarly, if the building is residential in nature, unless the area is made habitable, it cannot be treated as part of the plinth area. Similarly, if the building is residential in nature, unless the area is made habitable, it cannot be treated as part of the plinth area. 16.In this context, it is relevant to refer to the observations of a learned Single Judge in Geomon Joseph v. State of Kerala (W.P.(C) No.10217 of 2023) that an area which is not used for habitation, but used only for drying clothes and storage purposes, cannot be included for calculating the plinth area under the Act. It was also observed that even future use cannot be taken into consideration while determining the building tax and if the area is made habitable and used for habitation in future, building tax can be revised at that time. 17.In the instant case, though the learned Government Pleader vehemently contended that the matter be remitted to the assessing authority for a fresh consideration, I am of the view that in the light of the specific finding that the area below the trusswork is not fully enclosed, no purpose will be achieved by a remand, especially when, if any change is effected at any time in the future, the authority is empowered to revise the building tax based on the changes brought about. Accordingly, Ext.P15 order of assessment dated 30.08.2022 is set aside. The writ petition is allowed as above.