1. The appeal has been admitted on 9th April, 2001, in terms of the following question:

“Whether Tribunal was justified in not confirming the order of CIT(A) who had set aside the order of

assessment with the direction to give fresh opportunity to the assessee?“

2. Therelevant assessment year is 1990-91. The assessee has filed the return of income declaring income at Rs. 98,108. Thereafter notice under Section 143(2) of the IT Act was issued more than 10 times, but assessee did not respond to the notice. Thereafter the AO has made the assessment order under Section 144 of the IT Act, 1961, and estimated the income of the assessee at Rs. 3,52,947 and apportioned it amongst the partners as referred in the assessment order.

3. That assessment has been challenged before the CIT(A). CIT(A) has noticed that before framing the assessment under Section 144 of the Act, proviso to Sub-section (1) of Section 144 has not been complied with, Therefore, he set aside the order of the AO and restored it back to the AO with a direction to make a fresh assessment after affording opportunity to the assessee, CIT(A) has also referred the decision of Calcutta High Court in the case of CIT vs. Popu