The use of a building area for tax assessment must relate to its current utilization, not potential future use.

1. The present writ petition has been filed impugning the orders passed by the assessing authority, appellate authority and the revisional authority under the provisions of the Kerala Building Tax Act , 1975 ('Act', for short) in Exts.P3, P4, P6, P9 and P11, whereby the covered roof top of petitioner's building has been included in the plinth area of the building for levying building tax and luxury tax.

2. Sub-section (5) of S.5 of the Act provides certain areas, which should not be
included while determining the plinth area of the building for assessment. S.6 of the Act also provides for levying building tax on the plinth area excluding the area constructed for keeping firewood / garage etc. For ready reference, subSection (5) of S.5 and S.6 of the Act are extracted hereunder:
'5. Charge of building tax.
(1)  xxxx xxxx xxxx
 xxxx xxxx xxxx
(5) Where there are out - houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of such structure shall be added on the plinth area of the main building and the building tax assessed accordingly:
Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any non - residential purpose shall not be added on the plinth area of that building.'
'6. Determination of plinth area. - The plinth area of a building for the purposes of this Act, shall be the plinth area of the building as specified in the plan approved by the local authority or such other authorities as may be specified by Government in this behalf and verified by the assessing authority in such manner as may be prescribed.
Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of fi rewood or for any non - residential purpose shall not be taken into account for determining the plinth area of that building.'

3. The assessing and revisional authorities have included the area of the covered roof top in the plinth area to an extent of 113.84 M2. The revisional authority / District Collector called for a report from the Senior Superintendent (Inspection & Vigilance) attached to the office of the District Collector regarding the nature of the roof top. The Senior Superintendent attached to the office of the District Collector made inspection on 10.9.2021. The inspection report, Ext.P8, of the Senior Superintendent would reveal that the first floor roof of the petitioner's building was constructed with iron pipes and tiles, and the tress work was done from the top towards the zero point. The rear porting having a length of 3.80 metres does not join the zero point. The said portion is covered with net for getting air and light. It is further reported that the area having an extent of 113.84 M2 is having a height of 4.5 metres in the middle and as of now, there is no tiles laid for flooring and the said area is used for drying cloths and for storage purposes.

4. Despite the said report, the District Collector in the impugned order in Ext.P9 dated 10.10.2021 has concluded that since the area is habitable, the said area cannot be excluded from the plinth area to determine the building tax and luxury tax.

5. Even as per Ext.P8 report, the area is not used for habitation and is only used for drying cloths and storage purpose. Future use cannot be taken into consideration while determining the building tax. If the said area is made habitable and is used for habitation in future, building tax can be revised then. However, at this stage, the area is only used for drying cloths and storage purposes. Therefore, in my view, the report of the Senior Superintendent has not been cons