The assessee filed returns for the year ended March 31, 2002, for the assessment year 2002-03 admitting the income towards capital gains and interest and paid the tax. However, the Assessing Officer added the sale consideration of Rs. 4.30 crores in addition to Rs. 62,00,000 received by the assessee and passed an assessment order. The Commissioner (Appeals) confirmed the assessment order, against which, the assessee preferred an appeal to the Appellate Tribunal. The Tribunal quashed the addition of Rs.4.30 crores under section 45(5)(b) of the Income-tax Act, 1961 , and held that the transfer, as contemplated in section 2(47) had happened in the year ended March 31, 1993, the relevant assessment year 1993-94 and not in the assessment years 2000-01 or 2002-03. The assessee claimed that the capital gains were assessable only in the relevant year 1993-94 and not in 2001-02 or 2002-03 and hence, the voluntary admission made by the assessee on wrong advice, should be ignored. Since no tax was payable in 2002-03, the amount remitted should be refunded. The claim was rejected. On a writ petition challenging the order   dismissing the petition the Court held that t the income which is assessable to tax, which was not assessed in the relevant year, but, admitted by the assessee on a later date, cannot be said not assessable. The assessee paid the tax which was admittedly payable. Even if the assessment order were set aside, it would not have any impact on the self-assessment made by the assessee. The Tribunal had considered the addition of income under section 45(5)(b) as incorrect and nullified it. But the assessment order on the admitted income was not nullified. Only because there was an observation that the relevant year of the assessment was 1993-94 in view of section 53A of the Transfer of Property Act, 1882, it would not confer any legal right on the assessee to claim refund. Admittedly, the income was assessable to tax and it was not assessed due to the statement made by the assessee that the transfer was not complete in terms of the sale agreement. The assessee could not approbate and reprobate that what is not paid on the due date cannot be assessed at all. In other words, the assessment authority had not assessed the income which is not assessable to tax. Hence, the claim for refund of tax paid on the admitted income was not sustainable. (AY. 2002-03)